GEMA vs. YouTube

On video platforms such as YouTube, users can upload and publish videos. But what if users upload videos with unlawful content, for example in violation of copyright rights? This raises the question of whether YouTube is liable for this. The Higher Regional Court (OLG) in Munich has made a decision on this matter.

The music rights administrator GEMA sued YouTube, the operator of an online video platform. GEMA is claiming damages because certain musical works were uploaded to YouTube's servers and made publicly accessible to internet users, including in Germany, without the corresponding usage rights.

YouTube rejected the damages claim, arguing that it did not upload the music videos itself, but merely made the platform available to users.

For its part, GEMA is of the opinion that YouTube exploits the available works and is not merely a technical service provider. YouTube must, like a music service, acquire licences for the exploitation and is therefore liable for damages.

The Regional Court (LG) Munich dismissed the claims of the collecting society. The Munich judges had determined in the first instance (judgment of 30.06.2015 – Az. 33 O 9639/14) that a platform operator is only liable for content publicly accessible on its platform if it has published that content itself.

The court's decision in the matter of GEMA v. YouTube

By judgment of 28.01.2016 – Az. 29 U 2798/15 (Press release GEMA) the Higher Regional Court (OLG) Munich dismissed the damages claim of the collecting society. It thus confirmed the view of the Regional Court (LG) Munich that the platform is not responsible for its users' uploads and therefore cannot be held liable for copyright infringements.

Instead, only the individual users who upload videos are responsible.

It is decisive, according to the Higher Regional Court (OLG) Munich, that YouTube is merely a technical service provider. The relevant infringement act, the making publicly accessible by uploading the work, is performed by the user. As soon as YouTube users upload their videos, these are immediately made publicly accessible without YouTube having to intervene. There is therefore an absence of an infringement act by YouTube that could give rise to a claim for damages.

Conclusion

The decision must be distinguished from the judgment of the Hamburg judges in July 2015 (we reported), in which liability of YouTube was affirmed. However, only a secondary liability (Störerhaftung) was affirmed, because the video portal had not promptly removed the content after becoming aware of the copyright infringements.

With the decision of the Higher Regional Court (OLG) Munich, the legal dispute is presumably not concluded. A revision to the Federal Court of Justice (BGH) was expressly permitted. It remains to be seen whether and, if so, what decision the Federal Court of Justice (BGH) will make.