The Commercial Court of Vienna has issued a decision according to which YouTube is liable for copyright infringement of works uploaded by its users in Austria.
The case concerns allegations by the Austrian broadcaster Puls4 that its content was been uploaded without permission on Youtube.
The defensive position of Youtube was that the company operates in compliance with the requirement of the E-Commerce Directive according to which:
Article 14: Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
This option is possible only in the case of a “host provider”. The Vienna Court, however, based its decision on the European Court’s practice, which determines that there is no “host provider” when:
“. . . the service provider, instead of confining itself to providing that service neutrally by a merely technical and automatic processing of the data provided by its customers, plays an active role of such a kind as to give it knowledge of, or control over, those data.” (ECJ in L’Oreal ./.eBay)
The Court concluded that Youtube is not only a service provider but manage the uploaded data, promote it, measure the user’s activity etc. So in light of this, the company is not a neutral mediator.
It’s highly likely that this decision will be appealed but nevertheless, it shows the current more restrictive approach among different European courts toward the internet providers.
Source: Morrison & Foerster LLP – John F. Delaney, Christiane Stuetzle and Christoph Wagner, for Lexology.
Image: freephotocc, Pyxaby.