Probably YouTube and Uploaded will escape new problems in the EU

The Advocate General of the European Court Saugmandsgaard Øe has given an opinion on the joined cases C-682/18 и C-683/18, which concern the following background:

Case C682/18

YouTube is an internet platform operated by the company of that name, the sole shareholder and legal representative of which is Google. The platform, which takes the form of various websites and applications for smart devices, enables its users to share videos on the internet.

In order to upload a video to YouTube, it is necessary to create an account, with a username and password, and to accept the platform’s terms of service. Any user who uploads a video after registering in this way can choose to make it ‘private’ or to publish it on the platform. In the latter case, the video in question can be streamed from the platform, shared by any user and commented on by other registered users. Registered users can also create ‘channels’ to collect together their videos.

Videos are uploaded on said platform automatically, without material being seen in advance or checked by Google or YouTube. Almost 35 hours of video content are published in this way on the platform every minute, representing several hundred thousand videos each day.

YouTube includes a search function and processes the results of the search by, inter alia, evaluating the videos’ relevance specifically according to the user’s region. The results of that evaluation are summarised on the home page in categories such as ‘currently watched videos’, ‘promoted videos’ and ‘trending’. YouTube indexes the available videos and channels under categories such as ‘entertainment’, ‘music’ and ‘film and animation’. In addition, when registered users use the platform, they are given an overview of ‘recommended videos’, which depend, inter alia, on the videos watched previously by them.

YouTube receives from its platform, inter alia, advertising revenue. Advertising banners of third-party advertisers appear at the sides of the platform’s home page. In addition, advertisements are inserted into certain videos, which requires a specific contract to be concluded between the users concerned and YouTube.

Under YouTube’s terms of service, each user grants YouTube, in respect of the videos that he or she uploads to the platform and until they are withdrawn from the platform, a worldwide, non-exclusive, royalty-free licence to use, reproduce, distribute and create derivative works and to display and perform those videos in connection with the provision of YouTube’s platform and activities, including advertising.

In accepting those general terms, users confirm that they hold all the necessary rights, agreements, consents and licences for the videos that they upload. In addition, in the ‘Community guidelines’, YouTube asks users of its platform to respect copyright. They are also informed on making each upload that no videos infringing copyright may be published on the platform.

YouTube has introduced various technical measures to stop and prevent infringements on its platform. Anyone can notify YouTube of an illegal video in writing or by fax, email or webform. A notification button has been created, with which indecent or infringing content can be reported. By means of a special alert procedure, copyright holders are also able to have up to 10 specifically disputed videos removed from the platform by indicating the relevant internet addresses (URLs).

YouTube has also set up the Content Verification Program. That programme is available only to undertakings that are specially registered and not to private individuals. The programme offers the rightholders concerned various tools allowing them to check more easily how their works are being used on the platform. They can, in particular, check off directly in a list of videos those which they consider to infringe their rights. If a video is blocked because of such a report, the user who uploaded it is notified that his or her account will be blocked in the event that the infringement takes place again. YouTube also makes available to rightholders participating in that programme a piece of content-recognition software, called ‘Content ID’, which was developed by Google, the purpose of which is automatically to detect videos using their works. In that regard, according to the explanations given by Google, the rightholders should provide YouTube with audio or video reference files to identify the works in question. Content ID creates ‘digital fingerprints’ from those files, which are stored in a database. Content ID automatically scans each video uploaded to YouTube by a user and compares it to those ‘fingerprints’. The software can thus recognise video and audio, including melodies where they have been reproduced or copied. Where a match is identified, the rightholders concerned are automatically notified. They have the option to block the detected videos in question. Alternatively, they can choose to track the use of those videos on YouTube through viewership statisticsThey can also opt to monetise those videos by inserting advertisements or receiving a portion of the income generated by the advertisements inserted previously at the request of the users who uploaded the videos.

On 6 and 7 November 2008, music tracks from the album A Winter Symphony by the artist Sarah Brightman and private sound recordings from the ‘Symphony Tour’ concerts, linked to still and moving images, were published on YouTube by users of that platform.

By letter of 7 November 2008, Mr Peterson, who claims copyright and related rights to the music tracks and recordings in question, contacted Google Germany GmbH and, in essence, instructed that company and Google to remove the videos at issue on pain of sanction. To that end, Mr Peterson provided screenshots taken from those videos. Accordingly, using those screenshots, YouTube manually determined the internet addresses (URLs) of the videos and disabled access to them. The parties in the main proceedings nevertheless disagree on the extent of those blocking measures.

On 19 November 2008, sound recordings from Sarah Brightman’s performances, linked to still and moving images, were once again accessible on YouTube.

Subsequently, Mr Peterson brought an action against, inter alia, Google and YouTube before the Regional Court, Hamburg, Germany. Mr Peterson sought, in essence, to obtain an injunction prohibiting those companies from making available to the public 12 sound recordings or performances taken from the A Winter Symphony album and 12 works or performances taken from concerts on the ‘Symphony Tour’ or, in the alternative, from permitting third parties to do so. Mr Peterson also asked to be provided with information on the infringing activities in question and on the turnover or profits generated by YouTube through those activities. In addition, he requested that the court give a declaration that, inter alia, YouTube is required to pay him damages for making the videos at issue available to the public. Lastly, Mr Peterson requested, in the alternative, that information be provided on the users who uploaded those videos.

By a judgment of 3 September 2010, the Regional Court, Hamburg granted the action in respect of three music tracks and dismissed the action as to the remainder. Mr Peterson, YouTube and Google appealed against that decision.

By a judgment of 1 July 2015, the Higher Regional Court, Hamburg, Germany reversed in part the judgment given at first instance. The Higher Regional Court prohibited YouTube and Google, subject to a periodic penalty payment, from allowing third parties to make available to the public sound recordings or performances of seven tracks from the album A Winter Symphony. That court also ordered those companies to provide Mr Peterson with various pieces of information on the users who had uploaded the videos in question. The court dismissed the action brought by Mr Peterson as to the remainder.

Mr Peterson brought an appeal on a point of law at the Federal Court of Justice. In these circumstances, by a decision of 13 September 2018, which was received by the Court on 6 November 2018, the Federal Court of Justice stayed the proceedings and made a reference to the Court.

Case C683/18

Uploaded is a file-hosting and -sharing platform (commonly referred to as a file hosting service or a cyberlocker) operated by Cyando. The platform, which can be accessed via different websites, offers anyone, free of charge, storage space for uploading files that can contain any content. In order to use Uploaded, it is necessary to create an account with a username and a password by providing, inter alia, an email address. The uploading of files happens automatically without material being seen in advance or checked by Cyando. For each file stored by a user a download link is automatically created and sent to that user. Uploaded offers neither a directory nor a search function for the hosted files. However, users are free to share those download links on the internet, for example in blogs, forums, or even in ‘link collections’, which are sites that index those links, provide information on the files associated with those links and allow internet users to search for the files that they want to download.

Provided that one has an account and the appropriate links, files hosted on Uploaded can be downloaded free of charge. However, for users with free, standard access to the platform, download options are limited (in terms of maximum data download volume, download speed, number of simultaneous downloads, etc.). As an alternative, users can take out a paid subscription in order to benefit from a much higher daily download volume with no limit on speed or on the number of simultaneous downloads and no waiting time between downloads. In addition, Cyando has set up a ‘partnership’ programme where it pays remuneration to some users who upload files to Uploaded based on the number of downloads of the files in question.

The terms of service for Uploaded stipulate that that platform may not be used to infringe copyright. Nevertheless, it is established that the platform is in actual fact used for both legal applications and, ‘to a large degree’, applications that infringe copyright, of which Cyando is aware. In this regard, Cyando had been notified of the presence on its servers of more than 9 500 protected works, uploaded without the prior authorisation of the rightholders, download links to which had been shared on approximately 800 websites (link collections, blogs and forums), of which it is aware.

According to the order for reference in Case C‑683/18, a number of protected works to which Elsevier holds the exclusive rights of use were hosted on the Uploaded platform and made available to the public, without the authorisation of that company, in link collections, blogs and other forums. In particular, on the basis of research conducted from 11 to 13 December 2013, Elsevier notified Cyando, by two letters sent on 10 and 17 January 2014, that files containing three of those works, namely Gray’s Anatomy for StudentsAtlas of Human Anatomy and Campbell-Walsh Urology, were stored on its servers and could be freely consulted via the link collections, and

Elsevier brought an action, notified on 17 July 2014, against Cyando before the Regional Court, Munich, Germany. By its action, Elsevier claimed, inter alia, that a prohibitory injunction should be imposed on Cyando, as the party which infringed the copyright of the works at issue, in the alternative as an accomplice to that infringement and, in the further alternative, as ‘Störer’ (‘interferer’). Elsevier also requested that Cyando be ordered to disclose certain information to it. In addition, the first company asked the court give a declaration that the second company is obliged to pay damages to it in respect of those infringements.

By a judgment of 18 March 2016, the Regional Court, Munich imposed a prohibitory injunction on Cyando on account of its participation in copyright infringement in respect of the three works referred to in the letters of 10 and 17 January 2014 and granted the claims made in the alternative by Elsevier. The court dismissed the action as to the remainder.

Elsevier and Cyando each appealed against that decision. By a judgment of 2 March 2017, the Higher Regional Court, Munich, Germany reversed the judgment given at first instance. That court imposed a prohibitory injunction on Cyando in respect of the three works cited in the letters of 10 and 17 January 2014 as ‘Störer’ in accordance with the claim made in the further alternative by Elsevier. The appeal court dismissed the action as to the remainder.

 Elsevier brought an appeal on a point of law before the Federal Court of Justice. In these circumstances, by a decision of 20 September 2018, which was received by the Court on 6 November 2018, that court stayed the proceedings and made a reference to the Court.

The Advocate’s opinion:

(1) Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the operator of a video-sharing platform and the operator of a file-hosting and -sharing platform do not carry out an act of ‘communication to the public’ within the meaning of that provision when a user of their platforms uploads a protected work there.

(2)   Article 14(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that, in principle, the operator of a video-sharing platform and the operator of a file-hosting and -sharing platform can benefit from the exemption under that provision in respect of all liability that may result from the files that they store at the request of users of their platforms.

(3) Article 14(1)(a) of Directive 2000/31 must be interpreted as meaning that, in principle, the situations mentioned in that provision, namely the situation where a service provider has ‘actual knowledge of illegal activity or information’ and the situation where such a provider is ‘aware of facts or circumstances from which the illegal activity or information is apparent’, refer to specific illegal information.

(4) Article 8(3) of Directive 2001/29 must be interpreted as precluding rightholders from being able to apply for an injunction against a provider whose service that consists of the storage of information provided by a user is used by third parties to infringe a copyright or related right only if such an infringement has taken place again after notification of a clear infringement has been provided.

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