YouTube Can Be Liable For Copyright Infringing Videos, Court Rules (torrentfreak.com)

An anonymous reader shares a report: YouTube is known to be a breeding ground for creators. At the same time, however, it's also regularly used to share copyrighted material without permission. While copyright holders can issue takedown notices to remove infringing content, a preliminary ruling by the Commercial Court in Vienna has decided this is not sufficient. The ruling follows a complaint from local television channel Puls 4. After a thorough review of YouTube's functionalities, the Court concluded that YouTube has an obligation to prevent third parties from uploading infringing content. In its defense, YouTube argued that it's a neutral hosting provider under the provisions of the E-Commerce Act. As such, it should be shielded from direct liability for the actions of users. However, the Commercial Court disagreed, noting that YouTube takes several motivated actions to organize and optimize how videos are displayed. By doing so, it becomes more than a neutral hosting provider.

Comments

This is not for US-ians

[Anonymous Coward]

Venice Austria this time, not California

Re:This is not for US-ians

[110010001000]

I think they are talking about Vienna, Virginia.

Re: This is not for US-ians

[Nidi62]

I went to Austria during the winter almost 10 years ago. I don't know how the kangaroos can handle that cold year after year

Re:This is not for US-ians

[hcs_$reboot]

Maybe it's Vienna Austria in Virginia.

Re: This is not for US-ians

[suso]

Jokes on you:

https://www.thelocal.at/201501...

A kangaroo in Austria (Europe) in winter. Ok, I've seen everything, time to shut it down.

Re: This is not for US-ians

[dcw3]

But don't those whooshes flow in the opposite direction below the equator?

*Premliminary* is the key word, here

[Mathinker]

Frankly, I doubt that this has much chance of surviving the whole process including appeals.

And even if it does, all that would happen would be geoblocking of Austria by YouTube.

Re: *Premliminary* is the key word, here

[phantomfive]

It's practically impossible to prevent copyrighted things from being uploaded illegally. So if it comes to that, Google may decide to shut down youtube in the EU because there is no other option. What a shame that would be.

Re:*Premliminary* is the key word, here

[Mathinker]

My understanding is that you have it backwards. Even if the judicial system of Austria doesn't thow this out before reaching the highest court in Austria, because Austria is part of the EU it could be appealed to the EU courts as contradicting the EU "E-commerce Directive" (possibly identical with the "Act" which was cited in the post).

IIRC, Germany and Spain both handed decisions to Google that Google News needed to pay for the "snippets" and all Google did was either shut down the service (Spain) or only show snippets for publishers which explicitly gave them a free license (Germany).

Re: *Premliminary* is the key word, here

[Anonymous Brave Guy]

Well, they can certainly tell when the same content is uploaded repeatedly after they've already received a formal notification that it is infringing. Fixing that problem alone would already be quite helpful to a lot of smaller content producers, whose overheads issuing takedown notices every time can be significant.

Re: *Premliminary* is the key word, here

[nine-times]

It's practically impossible to prevent copyrighted things from being uploaded illegally.

One of the things that people seem to misunderstand is that, basically, you have to start with the assumption that all video has a copyright. Not only does the video itself have a copyright, but it may have elements within it that have their own copyright. If the video includes music, or a video clip from something else, or even just some words quoting another work, each of those things may have copyright issues.

So fundamentally you have to ask, at what level is Google responsible for vetting the content that people upload to ensure that all of the material is properly licensed. If I upload a short video of me talking, and I play an audio clip of music that I wrote and recorded, how should we expect Google to verify that all of that material has been properly licensed? How do they verify the identity of the uploader? How do they verify the identity of all the content (the video and the music included in it)? How do they determine whether the uploader has a license to post that content?

People who don't understand the issue only think about the case of clear piracy. Joe Schmoe uploads a music video that he has no right to, and the record label gets mad that they didn't check the video well enough before it was uploaded. "Why doesn't Google make sure that copyrighted videos are only uploaded by the copyright holder?!" But then you have to consider that there are (supposedly) hundreds of thousands of hours of video uploaded to Youtube every day, and all of it has potential copyright issues. How could you vet it all?

I could see there being automated systems to try to detect known content. For example, Google could try to detect whether videos are the same as videos they've already been asked to take down, but I'm pretty sure they already do that kind of thing. There's simply no way for Google to pay enough lawyers to sort out all the possible copyright licensing violations of all the videos that pass through their service.

So that leaves two options: figure out a way for them to be considered a "neutral hosting provider", or else shut down Youtube.

Re: *Premliminary* is the key word, here

[religionofpeas]

That still leaves people who have proper licenses for the copyrighted material

Re:I agree with the ruling

[Anonymous Coward]

That is not what the court said. It said that since Youtube's recommendations (and ads) functionality tries to optimize cash flow (both short- and long-term), it's not a neutral provider. Being a neutral provider has nothing to do with removing videos.

Re:Two problems here

[lhunath]

Tell that to the companies sending you emails as a consequence of the GDPR.

Re:Youtube makes money on copyright theft

[hcs_$reboot]

Imagine (... and some more crap)

Nope. It's the 21th and things changed. Get on with it.

Without a fuck-ton of false positives.....

[mark-t]

.... did the court offer any suggestions as to how, technically speaking, Youtube was supposed to achieve this?

The very *best* case scenario here if Austria gets what they are asking for is that this is going to result in entirely legal videos which might contain parody, satire, or commentary on copyrighted works being blocked from being viewed in Austria, as well as any other entirely original works that might happen to have some superficial similarity to a copyrighted work. It only goes downhill from there.

Re:Without a fuck-ton of false positives.....

[drinkypoo]

They can either stop doing it wrong, or start doing it right. Either they stop censoring videos altogether, or they start requiring verification of identity before permitting video uploads. Pretending they can't solve this problem is at best a failure of imagination. They can't solve it without substantially altering the site, but so what? They don't have a right to run it any way they want. There are these things called laws...

YouTube wants to be able to pick winners but doesn't want to keep the floors clean. They need to choose one or the other.

Re:Without a fuck-ton of false positives.....

[Anonymous Coward]

They can either stop doing it wrong, or start doing it right.

While I mostly agree with you, it's not that clear cut, and there are other options.

YouTube believes they are "a neutral hosting provider under the provisions of the E-Commerce Act". The court disagreed. So there is a law, and it's obviously unclear where the demarcation is between neutral hosting provider and, um, "more than a neutral hosting provider" (so clear, lol).

Either they stop censoring videos altogether, or they start requiring verification of identity before permitting video uploads.

AFAICT, that's not really the issue. They have identity (of sorts) before video's are uploaded (IMO, the plaintiff should sue that person, the court should subpoena youtube for the identifying info (ip, user, email, activity, etc), and someone should track them down (police/etc) so that the actively infringing party is held responsible, but I digress...). The censoring isn't the issue either - it's the value add stuff ("organize and optimize how videos are displayed").

The latter bit means they *may* be able to strip that stuff from the version of youtube for that country. If they remove all of their automatic categorization and other stuff, and rely just on what the user presents, then they'd be neutral again... but I suspect it'd also be more difficult for the plaintiff to find the infringing content.

They can also do what they're doing now - argue it in court. No need to do anything more than that now since it's still an interpretation of the law type of thing.

Lastly, though I'm not sure the extent of laws involved in this case, there may be some date based stuff to consider. Normally, laws are not applied retroactively. If/when marijuana is legalized, those that are currently incarcerated because of it are not automatically absolved; if something is made illegal, those doing it before the law is in effect are not retroactively punished. So, if what YT was doing at some point in the past was ok, they may be able to restrict access to everything after that date, and make a clean cut, and start conforming to the new ruling from this point forward (maybe provide an easy way for users to re-enable their content).

Anyway... lots of options here, and defining what is "right", especially on a global scale, is nearly impossible.

Re:Without a fuck-ton of false positives.....

[Raphael]

.... did the court offer any suggestions as to how, technically speaking, Youtube was supposed to achieve this?

Technically, there are many ways to do this. For example, YouTube could only allow uploads from those whose identity has been verified (so that law enforcement can come and say hello to them if necessary), or YouTube could hire a huge team of moderators to review all videos before they are visible online, or they could combine both by introducing a collaborative pre-moderation system in which the users whose identity has been verified can approve a video posted by someone else (and share the liability for any copyright infringement), or they could enhance several mechanisms for automatic detection of known copyrighted works, etc.

Technically, this is not a problem. Of course, most of these solutions would significantly hurt YouTube's business model and could have a chilling effect on the users who might then refrain from posting anything if they fear that they would be sued. Finding a solution that works technically and that also makes sense from a business point of view is much more difficult. But it is not the role of the court to find a better business model for a company; their role is to ensure that YouTube and other video hosting platforms respect the law.

The very *best* case scenario here if Austria gets what they are asking for is that this is going to result in entirely legal videos which might contain parody, satire, or commentary on copyrighted works being blocked from being viewed in Austria, as well as any other entirely original works that might happen to have some superficial similarity to a copyrighted work. It only goes downhill from there.

I agree that there is a huge risk that pendulum swings too far in the opposite direction, which would result in misuse by the copyright holders targeting perfectly legal works (parody and other cases of fair use). But I doubt that we will see that anyway, because it is unlikely that this preliminary ruling will survive for a long time.

Re:Without a fuck-ton of false positives.....

[Bite The Pillow]

You're not paying attention. If YouTube promotes illegal content, it fails to be neutral. If the next video is chosen randomly, user engagement goes down aka viewers decide to stop and go elsewhere.

This is not about detecting copyright infringement, but the way YouTube chooses content you might want to watch. YouTube can put Gangnam Style up next in your playlist because it is wildly popular, but it may not be the official Psy account getting the views. There is no recommendation on avoiding that problem.

This decision says YouTube needs to choose between solving that problem and finding another way to choose videos in order to remain a neutral carrier.

Re:Without a fuck-ton of false positives.....

[Solandri]

This is an impossible task. Copyright doesn't need to be registered. You simply have to create a work and it is automatically copyrighted (registering it just allows you to sue for greater damages if there's commercial infringement).

So in many cases, the only person on the planet who knows a work is copyrighted is the content creator. If someone else then steals his work and uploads it to YouTube, how the hell is YouTube supposed to know it's supposed to block it because it belongs to someone else?

Your clean floor analogy doesn't work because there's a distinct difference between a floor being clean or dirty. This is more like YouTube owning a fountain, and millions of people throw coins into that fountain each year. This court ruling is basically saying YouTube can't allow people to throw coins into the fountain unless YouTube first makes sure none of those coins were stolen. How is YouTube supposed to do that? In some cases, the *only* person on the planet who knows the coin was stolen is the thief - the original owner might not even realize yet that it's been stolen.

Re:Two problems here

[AHuxley]

Re "Secondly foreign laws do not apply to US companies."
Wait for the blasphemy courts in distant nations to rule on the funny cartoons and the music they use.

Make fun of Communist party history? Will a court in China have to allow that?
Should a nation like Austria be allowed to shape US freedoms?

Every cult, faith group, Communist party will be looking into who they have in Austria to start their own court actions...

Re:Two problems here

[PPH]

If the US company supplies goods and services to the foreign company then they will need to abide by their rules.

Unless Alphabet/Google/Youtube maintain servers within Austria, they aren't actually supplying anything there. Some Austrian went to a German (or UK, or USA) site, fetched the content and imported it.

Screw Utoobe

[lamer01]

It is not neutral. It already censors and decides what is monetizable and what is not. They can't have it both ways. Either be truly neutral (like they used to be) or abide these kinds of rulings.

There's only one way you could comply with this:

[Rick Schumann]

In order to comply with this, if (theoretically) it was enforced world-wide upon YouTube, would be for YouTube to have every video uploaded sit in a private space that only YouTube has access to, and have a human employee of YouTube view the video looking for copyright violations. In essense it would be the death of YouTube.

But wait, there's more: That would set a legal precedent for any media hosting on the entire Internet; everyone, from the largest to the smallest company, would have to do the same vetting of uploaded media in order to protect themselves from liability. Something like Facebook, for instance, would have to have every static photograph uploaded scrutinized, too, to ensure that there's nothing in the background that's IP belonging to anyone who would sue over it.

Theoretically, a ruling like this, if it was upheld worldwide, would more or less destroy the Internet as we know it. The only entities it would serve would be large media companies; the Internet would become, even more so than it is already, just a tool for business and revenue generation, not much of anything in the interests of private individuals. Many companies providing hosting of uploaded media would simply cease to exist or stop offering the ability to upload anything for fear of being legally liable for copyright violation.

The Internet is becoming a slow-motion trainwreck. Between government censorship in so many countries, cybercrime, abuses by people and organizations pushing 'fake news', and ISPs wanting to go back to the 'walled garden' business model, the Internet is slowly but surely becoming unusable.

Re: I agree with the ruling

[jedidiah]

> Private parties and companies can censor all they want.

Your eagerness to replace a government tyrant with a corporate tyrant is duly noted.

The problem with that is that such censorship nullfies even American protections given to "common carriers".