German collection society GEMA's legal challenge to prevent YouTube from making 75 compositions available online has failed.
The Regional Court of Hamburg today (Aug. 27) dismissed the application submitted by GEMA for an interim injunction against YouTube, on the grounds of the absence of the necessary degree of urgency.
However, a full legal challenge can proceed, albeit at a slower pace than GEMA wanted.
As the court ruled that it was not possible to establish the necessary degree of urgency, it did not consider the wider question as to whether the claimants have any fundamental legal grounds for seeking an order to prevent YouTube from publishing the videos containing the music tracks in dispute.
The court ruled that this question would have to be decided in principal proceedings, unless the parties were able to come to an agreement in an out-of-court settlement.
However, it did indicate that there were good arguments in favor of the assumption that the applicants were entitled to seek a final injunction against the respondent under the provisions of copyright law, adding that it was reasonable to assume that the respondent had failed to perform reasonable checks or to take reasonable measures to avoid the copyright breach.
The dispute was prompted by the fact that, following the expiry of a licensing agreement on March 31, 2009, no royalties are currently being paid to GEMA for distribution to members. The negotiations for a new agreement have so far failed. GEMA wants any new fee arrangements with YouTube to not only include advertising revenue but also take account of YouTube's business performance.
The claimants may lodge an appeal against the decision within one month. Both parties refused to comment
In May nine collection societies called on YouTube to delete 600 tracks from its video portfolio and to block access to these tracks from Germany. The alliance includes AKM (Austria), ASCAP (United States), BMI (United States), GEMA (Germany), SABAM (Belgium), SACEM (France), SESAC (United States), SIAE (Italy) and SUISA (Switzerland).
This was in response to an announcement made by the German collection society on May 10 that it had abandoned talks with YouTube, which had been ongoing for more than one year and had proved futile.