Social network, media company, host provider, neutral intermediary… what’s in a name for YouTube?

Media companies who call themselves social networks will have to recognize that they, too, have to take on responsibility for the content with which they earn their millions.

-— Markus Breitenecker, CEO of Puls4

Who is to blame, if someone records TV programmes and illegally uploads them to YouTube: YouTube, or the individual? According to the Commercial Court of Vienna, YouTube is jointly responsible for copyright breaches from user-uploaded content. Is this einer Entscheidung, die das Internet revolutionieren könnte – a decision that could revolutionize the Internet?

To date, the unanimous opinion of European case law supports the position that YouTube is only a platform, an intermediary, a service provider, a neutral host, and so on – and therefore could not bear the responsibility for stolen content. That’s no longer true, says the Handelsgericht Wien (Vienna’s Commercial Court).

In its judgement of 6 June, the Court handed Austrian TV broadcaster Puls4 a key victory in its four-year legal battle with Google-owned YouTube. In 2014, Puls4 had sued YouTube for allowing Puls4’s stolen content to appear on the YouTube platform. YouTube responded by asserting the Host Provider Privilege set out in Article 14 of the E-Commerce Directive 2000/31/EC, which in certain situations shields host providers from being held responsible for the actions of its users.

The Americans have a similar provision in the Online Copyright Infringement Liability Limitation Act (OCILLA), which forms part of the Digital Millennium Copyright Act. The OCILLA creates a conditional “safe harbor” for online service providers by shielding them for their own acts of direct copyright infringement, as well as from potential secondary liability for the infringing acts of others. In exempting internet actors from copyright infringement liability in certain scenarios,  both Article 14 and the Safe Harbor rule aim to balance the competing interests of the copyright holders, and those who use the content online.

Where YouTube is simply a host provider, it is the individual who uploaded the video in the first instance who is to blame for the theft of copyrighted material. This time, the Court disagreed with YouTube’s argument, and has found finding the media giant to be jointly responsible for the copyright infringement.

So, why should we care about the Puls4 case? Although Austrian case law is not binding for other European Union member states, the Commercial Court’s judgment sets a precedent for denying Host Provider Privilege to YouTube. This may encourage similar decisions in the future which are based on the same line of argument.

Speaking to German newspaper Der Standard, Puls4’s CEO Markus Breitenecker explained that YouTube had effectively abandoned its neutral intermediary position and assumed an active role, which provided it with a knowledge of or control over certain data. In European legislative parlance, this is known as being a false hosting provider or false intermediary.

For years, many of us have assumed that YouTube is just a inanimate platform to which users upload videos. This case underscores that YouTube can no longer “play the role of a neutral intermediary” because of its “links, mechanisms for sorting and filtering, in particular the generation of lists of particular categories, its analysis of users’ browsing habits and its tailor-made suggestions of content.”

Puls4 and YouTube have until early July to petition the court, before it issues its binding ruling. In a statement to The Local Austria, YouTube said it was studying the ruling and “holding all our options open, including appealing” the decision.  In the meanwhile however, YouTube noted that it takes protecting copyrighted work very seriously.

If the preliminary decision is upheld, YouTube must perform a content check upon upload, instead of simply removing copyright infringing content upon notification. In respect of this, the Viennese court stated that “YouTube must in future — through advance controls — ensure that no content that infringes copyright is uploaded.” It is therefore rather timely that YouTube began beta testing a feature called Copyright Match last month, a tool which allows users to scan the platform to locate full re-uploads of their original videos on other users’ YouTube channels.

Screenshot 2018-06-28 at 10.29.54 PM
some Puls4 content is still available on YouTube (at least, here in the UK).

The European Parliament seems to think the arguments about false hosting providers is best left to the courts to decide. Despite the E-Commerce Directive being more than 15 years old, there is no pressing need for a reform. In a recent report on the matter,  the European Parliament’s Committee on the Internal Market and Consumer Protection stated that while false hosting providers may not have been envisaged at the time of the adoption of the E-Commerce Directive in 2000, “the delineation between passive service providers caught by Article 14 and active role providers remains an issue for the court.”

 

 

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