YouTube: Publisher or service?
A German court could be about to redefine our understanding of user-generated content websites
Blogs | 24 Apr 2012 :
Regular readers of TechCentral and listeners to our podcast will be aware of our position on copyright. As far as we're concerned, producers of 'content' (that amorphous commodity that may or may not be art) deserve to choose whether or what to charge for their work. As far as punitive measures for those who would 'steal' content or make it available for sharing without the consent of the rightsholder there should be some sanction, a three-strikes rule being the least worst of a series of unworkable options. The real solution to piracy, we argue, is to provide resonably priced, superior alternatives. If the fault lies anywhere it is not with networks, websites or platforms, but ourselves.
Now a German court has blown the copyright debate wide open with a decision aimed at solving a loyalties dispute that could have a ripple effect affecting every website reliant on user-generated content.
Over the last few months a series of decisions by the European Court of Justice (ECJ) has brought some clarity of how the issue of illegal file-sharing/piracy/copyright infringement can be dealt with. Two cases in Belgium - SABAM v Netlog and Scarlet v SABAM - cemented the status of Internet service providers as safe harbours, no more responsible for the traffic over their networks than phone companies are for the kinds of conversations carried out over telephone lines. These decisions also ruled out the possibility of legislating for content filtering measures or restricting access to websites that facilitate illegal file-sharing. The rationale provided by the ECJ was that such measures would result in limiting resources for the free and open exchange of ideas, goods and services across the EU. It's a viewpoint that has also found traction in Australia where ISP iiNet won a High Court action preserving its status as a safe harbour.The US, of course, has been well ahead of the curve on this thanks to the Digital Millennium Copyright Act passed way back in 1998.
It's not all bad for rights holders, however. The ECJ has ruled that there is no provision in Swedish law preventing ISPs from handing over the IP addresses of suspected copyright infringers. It's a troubling decision for (suspected) infringers but not what the entertainment industry is looking for.
Tackling infringers on a case-by-case basis is messy, expensive process and such actions are unlikely to cover their costs or act as a large scale deterrent. Then there is the possibility that not all prosecutions would be successful.
The ECJ is pushing for the primacy of individual responsibility but rightsholders are looking for a systemic solution to an endemic problem.
Having failed to hold ISPs accountable for the behaviour of their customers, and individual prosecutions unlikely to yield returns, the entertainment industry's last best hope is to identify, somewhere, a single enemy with deep pockets and a silver bullet to put them down with - it may have found both.
Last Friday, a court in Hamburg ruled that video sharing website YouTube had to introduce measures ensuring material that infringed copyright could not be uploaded to it, legacy content would not be affected. The action, brought by rights collection agency GEMA is the latest act in a legal battle over artist royalties that saw major record labels pull their content in Germany in 2009 over alleged non-payment of royalties. Under an agreement brokered in 2007 YouTube would pay royalties based on advertising revenue. When the agreement came up for renewal two years later GEMA argued for a pay-per-stream rate of 0.6c, an offer YouTube refused as it would require handing over user data to corroborate the amount owed.
The resulting impasse doesn't look like clearing soon but the decision says a lot about how YouTube, and sites like it that rely on user-generated content, is to be treated in law. Where the US applies the safe harbour standard to platforms like YouTube (and social networks like Facebook), the Hamburg decision effectively turns it from a nondescript platform into a publisher with responsibility for overseeing its content, ensuring it does not infringe copyright.Suddenly the policy of responding to takedown notices is to be replaced by a more proactive strategy, cutting off suspect content before posting.
Holding YouTube to account over unpaid royalties is one thing, but the same model of preapproving forum posts could be applied to any kind of website where a conversation takes place. Fine for websites with low traffic and some commercial backing, everyone else not so much. Boards.ie, for example, suddenly has to vet its posts before allowing anything to go online. Managing discussion boards could become slow, unwieldy and irrelevant as part-time moderators become full-time editors; the project becomes unsustainable. This looks like a job for the ECJ.
The fundamental problem the German decision uncovers is the inability to grasp the difference between material that is published by a website and that which is posted to it. The US gets it, the ECJ gets it.Lets hope the rest of the EU follows their lead in dealing with the Great Copyright Crisis.