Top EU Court Rules Online Platforms Are Not Liable For Copyright Infringements Of User Uploads, Unless They Actively Intervene
One of the most contentious areas of Internet law is the extent to which sites are responsible for the actions of their users. One issue concerns user-uploaded materials: if these infringe on copyright, should the platform be held responsible too? The EU's highest court, the Court of Justice of the European Union (CJEU), has just ruled on two cases touching on this question. One concerned the posting of music recordings to YouTube, while the other involved medical textbooks published by Elsevier, which appeared on some filesharing sites. Both cases were before the Federal Court of Justice in Germany, which asked the CJEU to provide guidance on the liability of online platforms as regards to copyright materials posted by users. The basic decision is straightforward (pdf), explained here by the court's press release:
the Court emphasises the indispensable role played by the platform operator and the deliberate nature of its intervention. That platform operator makes an 'act of communication' when it intervenes, in full knowledge of the consequences of its action, to give its customers access to a protected work, particularly where, in the absence of that intervention, those customers would not, in principle, be able to enjoy the broadcast work.
In that context, the Court finds that the operator of a video-sharing platform or a file-hosting and -sharing platform, on which users can illegally make protected content available to the public, does not make a 'communication to the public' of that content, within the meaning of [EU] Directive 2001/29 [on copyright], unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright.
Put simply, platforms need to be involved in making material available in some active way before they can be held liable.
In an excellent Twitter thread, Julia Reda points out some interesting aspects of the ruling. First, she notes that copyright companies have long tried to push the idea that platforms like YouTube, largely based on user-uploaded material, are automatically playing an "active" role, and are therefore not mere conduits. The latest CJEU ruling says that for a platform to be liable under the EU's eCommerce Directive "it must have knowledge of or awareness of specific illegal acts committed by its users relating to protected content that was uploaded to its platform."
However, a platform may be required to use "appropriate technical measures" to "counter credibly and effectively copyright infringements on that platform". Within the full judgment is the following comment by the judges:
YouTube has put in place various technological measures in order to prevent and put an end to copyright infringements on its platform, such as, inter alia, a notification button and a special alert procedure for reporting and arranging for illegal content to be removed, as well as a content verification program for checking content and content recognition software for facilitating the identification and designation of such content. Thus, it is apparent that that operator has adopted technological measures to counter credibly and effectively copyright infringements on its platform.
Reda points out that YouTube's "technological measures" are regarded by the court as "credible" and "effective", even though they do not use an upload filter of the kind that Article 17 of the EU Copyright Directive is likely to need. As she writes: "Providing a button that allows rightholders to easily notify infringements can be an appropriate technical measure."
That's good news, but it's important to remember that the current CJEU ruling refers to EU law as it was before the Copyright Directive came into force. As such, its views on upload filters are likely to be superseded by the important case brought by Poland, seeking to have them thrown out completely. It may be that the CJEU rules that Article 17's strict upload filters are legal in the EU, which would therefore negate the current judgment's more lenient view of what is needed. The first indication of which way the court may rule will come next month, when a CJEU adviser will offer a preliminary opinion on the matter. Although the new CJEU position on technological measures is welcome, it is the future ruling on Article 17 that will be decisive.