Youtube may be liable for damages in the event of copyright infringement

Karlsruhe The Federal Court of Justice has for the first time determined that Youtube and the Upload platform must pay damages for copyright infringements under certain conditions. This may also apply if the copyright infringements were committed by third parties.

In principle, the operators can also be obliged to provide information about who has committed the legal violations and must provide e-mail addresses for this purpose, the BGH said on Thursday. However, the prerequisite for liability is that the platform owners have not taken action against copyright infringements or have not taken action in good time when they learned of illegal settings. Liability also occurs if, for example, the company creates incentives for users to illegally post music or videos by paying money.

However, the BGH did not make a final decision on the liability of Youtube or upload in the seven cases before it, because findings are still missing. All seven cases were referred back to the lower courts. Thus, the dispute, which has been going on for years, enters a new round: the Higher Regional Court of Hamburg and the Higher Regional Court of Munich must now re-examine the claims for damages and information under the standards set by the BGH.

The lawsuit against Youtube concerns music tracks and concert recordings by singer Sarah Brightman, which were uploaded to the platform in 2008 without authorization. After a corresponding letter from the producer’s lawyer, the videos were partially deleted, but two weeks later they were available again. Upload was sued by Constantin Film, Sony Music and the collecting society Gema, among others, because copyrighted music tracks and films were posted on the shareholder platform.

Upload itself does not publish a collection of links about the retrievable titles. But third parties set appropriate link collections. In addition, Upload pays up to 40 euros for one thousand downloads. The BGH saw “weighty indications for the assumption that Upload has not taken sufficient technical measures” to effectively counteract copyright infringements, as the chairman of the BGH Judge Thomas Koch explained.

The European Court of Justice (ECJ) had also made a decision on the conditions of liability a year ago. This was the basis for the judgment of the BGH. So far, the platform operators have only been obliged to refrain from copyright infringements, but not to pay damages or even to provide information about the identity of the perpetrators. This has changed as a result of the ECJ case law.