German FCJ ruling on liability for copyright infringements by sharehosters and video sites

Internet video platforms such as YouTube and sharehosters such as uploaded must be liable for copyright infringements after all. This has now been decided by the Federal Court of Justice (FCJ) in a new ruling and thus adapts the case law to the currently applicable EU law.

Sharehoster and video sites are liable for copyright infringements

If copyright infringements occur on platforms such as YouTube or sharehosting sites such as uploaded.net, the sites can be held liable in Germany in the future. This was decided by the I. Civil Senate of the Federal Court of Justice (FCJ), which is responsible among other things for copyright law, in several rulings on June 02, 2022.

Until now, corresponding platforms could not be held liable in Germany if the content was uploaded by users. With the new ruling, the FCJ is adapting the law to the stipulation of the European Court of Justice, which issued a new EU directive last year.

About a year ago, the ECJ ruled in two corresponding cases that corresponding online platforms are not directly liable for the upload of copyrighted works. Provided that they cooperate as neutral intermediaries and take measures themselves against copyright infringements. Accordingly, the proceedings must now be reconsidered before a court of appeal.

One of the decisive factors in the FCJ rulings was a music producer who had concluded an exclusive contract with a well-known singer in 1996 entitling him to exploit recordings of her works.

After corresponding concert recordings of the singer were uploaded to YouTube, she had the content blocked with the help of lawyers. Shortly thereafter, recordings were uploaded again, whereupon the music producer demanded that YouTube cease and desist, provide information and establish its liability for damages.

Sharehoster does too little

Just in the proceedings with the sharehoster uploaded.net, however, the FCJ comes to the conclusion that the operator has not taken the required measures: “In the proceedings […] there are weighty indications for the assumption that the defendant [uploaded.net] has not taken sufficient technical measures,” it says in the judgment.

Corresponding proactive measures such as keyword filters when downloading, hash filters, manual checks and searches in link resources would counter copyright infringements “not sufficiently effective”. Other measures are merely reactive and therefore also insufficient.

Much worse, the FCJ sees weighty evidence for the assumption that the “business model of the defendant is based on the availability of infringing content and is intended to entice users to share infringing content via the defendant’s platform.”

According to the court, however, in order to be able to assess the whole thing conclusively, actual findings of fact are still necessary. A total of seven judgments, one of them against YouTube, six against uploaded.net, now go back to the courts of appeal, which have to renegotiate the facts and decide on them.