Platforms Can be Liable

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Germany’s top court has ruled that online platforms such as YouTube could be held liable for illegal uploads that infringe copyrights, even if the content is posted by third parties.

In Germany, the music producer Frank Peterson, sued YouTube and Google for making his music available without permission.
German courts were undecided as to whether YouTube could be held liable for pirating users.
The Federal Court of Justice, therefore, requested guidance from the Court of Justice of the European Union (CJEU).
In particular, the court wanted to know if, and under what conditions, online services make a “communication to the public” when it comes to pirated files and videos.
Last summer the top EU court ruled that, in principle, online services are not directly liable for pirating users.
The ruling was good news for Google and YouTube, however – there are exceptions.
Circumstances when the platforms can be held liable, for instance when they fail to “expeditiously” remove infringing content following a rightsholder complaint.
In addition, the EU court ruled that the platforms can lose their liability exception if they actively take part in the infringing activities or if they fail to take action despite being aware of them.
Platforms Can be Liable

Consequently, on June 2nd, 2022, the German Federal Court of Justice issued a new order taking the EU guidance into account.
The court clarified that online platforms can indeed be held liable if they fail to take appropriate action.
To be clear, Germany has implemented the new EU Copyright Directive which requires online services to ensure that infringing content is taken down and not re-uploaded.
If platforms fail to do so, they can be held accountable for damages.
In essence, the courts will now have to decide whether the measures YouTube has taken in response to the reported copyright infringements are sufficient.
(Thor’s comment): I believe we will be seeing the first legal cases where the “upload filter” requirements of the Copyright Directive will be put to the test this summer…

How can NIM’s technology solve this?

A Copyright registration places on record a verifiable account of the date and content of the work in question so that in the event of a legal claim, or case of infringement or plagiarism, the copyright owner can produce an accurate copy of provenance from a reliable source.
By using NIM’s open-source technology (CopyrightChain), an immutable provenance is created for each registration.

Article 17 says that if you have a website that allows users to post content, then you are responsible for making sure that content is not infringing on a copyright.
And if it is, then you need to make sure it’s taken down.
In theory – this will provide copyright owners with more royalties, as well as more security against misappropriated use or use without their knowledge.
YouTube tells copyright owners to license their copyright that is uploaded by users at the rate of 12 million each day at a price set exclusively by YouTube.
The alternative is to check 12 million videos each day and send a take-down notice for copyright infringement for each occurrence of copyright piracy – an impossible task…
This approach has enabled YouTube to pay 1/10 of what Spotify is paying copyright owners for a music stream.
And as we all know, Spotify is not the best p(l)ayer in the class.

The EU directive says that for the more than 500 million citizens of the European Union, YouTube and Facebook will be treated like Spotify, Apple Music, Netflix or any DSP.
They must license the copyrighted works on their sites or face the music (pun intended) for copyright infringement.

NIM is the upload filter…
“Upload filters” are to be used by online platforms such as YouTube and Facebook to check whether the content users publish on their site (such as videos, images, audio files or code) is protected by copyright.
For instance, you film your sister’s birthday on your mobile, and you want to put the song “Happy birthday to you by Stevie Wonder” as music always makes a video better.
Since this is a copyrighted song, Facebook and YouTube will have to refuse upload under article 17 UNLESS you make a quick stop at one of NIM’s partners and register the use of “Happy birthday to you” as a UUC (User Uploaded Content) BEFORE uploading the video.
Since the Copyright is registered and you registered the use (will take 5 to 15 seconds) neither Facebook nor YouTube will have any objections, and they will pay the royalties to the owners of “Happy Birthday to you”, each time it’s played (however reluctantly).

NB! This is not implementable in the UK that (after Brexit) has become a ‘safe harbor for safe harbor’

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