YouTube, MySpace Face European Copyright Clash

There is a specter haunting Europe – and it’s poised to cause some nightmares for video and social networking companies like YouTube and MySpace. Collective licensing organizations throughout the continent have been demanding compliance in recent months, seeking their share of the potential billions generated by online video. At the forefront of this movement is GEMA – a German organization that now now has its sights on YouTube and MySpace.

YouTube executives told the Wall Street Journal a few months ago that they find clearing rights for U.S. music videos complex and frustrating. This year they might wake up to realize their biggest nightmare might just be the European market.

GEMA is one of the strongest collective licensing organizations in Europe. It represents the performance and mechanical licensing rights of 60,000 German authors, composers and publishers virtually without any competition. It’s as if ASCAP, BMI, Sesac and the Harry Fox Agency joined forces to become one big, monopolistic mega-association.

GEMA has been causing a stir in the online world in recent weeks. First, it was granted preliminary injunctions against the file-hosting platforms Rapidshare.de and Rapidshare.com. A few days later GEMA declared another preliminary victory, this time against the commercial Usenet service operator Usenext. Rogue file hosters weren’t the only targets of these injunctions, though. GEMA also wanted to flex its legal muscles to force other platforms into licensing negotiations. A press release about the Rapidshare injunctions quoted GEMA CEO Harald Heker saying:

“These rulings will also be of major significance when it comes to dealing with Web 2.0 services like YouTube and MySpace in the future. They show that the mere shifting of the act of use onto the user and the alleged non-controllability of the contents do not release the service operator from its responsibility under copyright law for the contents it makes available on its website for downloading.”

This is not the first time YouTube and MySpace have been in trouble for alleged copyright violations. YouTube purchaser Google supposedly even set $500 million aside to fight and settle such lawsuits.

YouTube has used the Digital Millennium Copyright Act safe harbor provisions to shield itself from copyright violations, arguing it cannot be held responsible for the misdeeds of its users, while at the same time offering to remove any unlicensed content – a policy that YouTube also sees fit for European rights holders, according to a spokesperson:

“YouTube respects copyright and works in close cooperation with rights holders. GEMA is no exception. We will continue to provide content companies in Germany and elsewhere with tools to easily notify us of unauthorized use of their content so we can promptly remove it.”

Problem is, most European countries don’t have legal protections similar to the U.S.’s DMCA safe harbor. They do, however, have strong collective licensing organizations. GEMA has reportedly been meeting with representatives of a dozen such organizations during the MIDEM music fair in Cannes. There is no word yet whether they could find common ground for collective action against Youtube and Myspace, but chances are GEMA will move forward anyway – and in turn make Europe rough territory for online video vendors.