German Court holds YouTube partially liable for third party content on the ground of the German theory of “disturber’s liability”

In a decision issued on 20 April 2012, the Regional Court of Hamburg (Landgericht) (see Court’s official press release in German here), has issued an important decision holding YouTube partially liable on the ground of the German theory of “disturber liability” (“Störerhaftung”) for not taking down immediately and/or filtering videos already flagged as infringing on its website.

In this case, the German collecting society GEMA had brought an action for direct and indirect copyright infringement against YouTube after finding that several videos infringing its rights had been posted, maintained and/or re-posted on YouTube.

The German Court first held that YouTube could not be liable on the ground of direct liability, since it had not directly committed any infringement. The Court however found that YouTube could be held liable on the ground of the German theory of disturber’s liability (“Störerhaftung”) for not taking down videos already flagged as “infringing” by right holders.

Specifically, the Court held that YouTube provided a video platform service which involved some behavioral and control duties for which it could be held liable to stop or prevent its users from committing further infringing activities, subject to the requirement that such duties were not excessive or disproportional. In this case, the Court found that requiring YouTube to take down material “without delay” and/or to filter out material already “flagged” as infringing, by using a filtering system that it had itself developed, was “reasonable”. The Court added that YouTube could not simply rely on its users to use these filters but had to implement them itself.

Although it has been reported that YouTube and GEMA have engaged in some negotiations following this decision, both parties have appealed the decision to preserve their rights. [Béatrice Martinet Farano]