Ladies and gentlemen, welcome to tonight’s legal, online puglistic ticket for your entertainment: On the left we have YouTube, the ubiquitous video-sharing service that boasts billions of views each month. On the right, we have GEMA, the German Society for musical performing and mechanical reproduction rights, which represents more than 64,000 German copyrights for composers, lyricists and music publishers. Although both sides have similar goals of protecting the rights of creatives, they have been slugging it out in bitter legal battles for more than a half dozen years over a multitude of issues including negotiations, litigation/arbitration and the media. The analysts’ scorecard on the fights, thus far, looks like this:
ROUND 1: Negotiation. Even though a two-year license agreement lapsed between the parties, they have not been able to come to a subsequent understanding, namely over “equitable renumeration.” They are deadlocked as to whether YouTube will pay GEMA per view or whether YouTube instead will pay GEMA a portion of the ad revenue. As of January, 2013, no further movement has occurred in their talks.
ROUND 2: Litigation / Arbitration. GEMA filed a test case in the District Court of Hamburg, seeking liability for copyright infringement by YouTube when a dozen songs were uploaded without permission. Though the court said YouTube could not be held primarily liable, the judge found that the Google subsidary could be secondarily liable because “after being notified of individual copyright violations, it should have removed the infringing content from its platform, and, in order to prevent future infringements regarding that content, implement a Content-ID system and if necessary a word filter,” the Kluwer Copyright Blog reports. YouTube has appealed this ruling.
ROUND 3: The Media. International media has fueled the fire by pitting the two sides against each other. They have portrayed YouTube as victim and GEMA as a money-hungry monster that doesn’t care what loss of revenue from YouTube might mean to German artists (which, incidentally, the rights society represents). A recent survey in Germany has found that 615 of 1,000 of the most popular YouTube clips are blocked, which makes the Germans the nation with by far the largest number of blocked videos.
In this legal slug-fest, there is no clear winner. Yet. Just some messy sets-to with lots of chatter, in and out of the ring. GEMA, which has asked the country’s patent and trademark office to step in to try to resolve this tiff, also recently has filed a cease-and-desist order for YouTube to take down its statement to its customers as to why certain items cannot be seen: “Unfortunately, this video is not available in Germany” YouTube says, “because it may contain music for which GEMA has not granted the respective music rights” that comes up with some of the videos. Another day, another battle. But who will win the war?