Streaming

Court decision on Redtube warning letters – is streaming now legal?

A court in Hamburg, Germany, has prohibited further warning letters in their current form from being sent in the Redtube case. But does this mean that streaming is now officially legal? Is the Redtube warning letter fiasco finally over?

Court decision on Redtube warning letters – is streaming now legal? ©-Thomas-Jansa-Fotolia

Court decision on Redtube warning letters – is streaming now legal? ©-Thomas-Jansa-Fotolia

[IMPORTANT UPDATE as of May 2017] The information below reflects the previously valid legal approach to streaming. As part of a landmark judgment of May 2017, the European Court of Justice ruled that streaming of works protected by copyright is illegal as long as the original source is clearly illegal (ECJ, Case C-527/15). You can find the details about this latest judgment on streaming in our blog article at

https://www.wbs-law.de/urheberrecht/eugh-zu-streaming-72808/

Therefore, the text below may not reflect the current legal situation [END OF UPDATE]

Redtube: streaming warning letters

Before Christmas, a wave of warning letters was sent to internet users accusing them of breaching copyright through streaming. The letters concerned the website Redtube.

Following huge public indignation, a court in Germany has prohibited alleged copyright holder, The Archive AG from sending any more copyright infringement notices in their current form. For now, recipients of the warning letters can breathe a sigh of relief.

The injunction was granted on 19.12.2013 (case ref. 310 O 460/13) however the legal reasoning was published only yesterday.

What has been prohibited?

In its ruling, the judges at the Regional Court Hamburg prohibited The Archive AG form sending further warning letters in their current form to internet users of the Redtube website. The Redtube warning letters, which had required internet users to stop viewing streams to which The Archive AG owned the copyright, are now illegal in this form.

The court determined that the warning letters were detrimental to the relationship between Redtube (or its operator, Manwin) and its customers. As a result the warning letters infringed the so-called right to carry on an established business.

Why were the warning letters illegal?

Those hoping for concrete declarations as to the legality of streaming in general will be disappointed by the judgment.

The court simply rules that the warning letters, in their current form, go too far, as they prohibit Redtube users from viewing particular films belonging to the copyright holder via streaming. This includes streams from sources which were not clearly illegal.

Under § 44a no. 2 German Copyright Act (Urheberrechtsgesetz, UrhG), only streaming material from “clearly illegal sources” is prohibited by law. This means that viewing streaming videos from sources which are not clearly illegal is permitted.

As a result, the warning letters cannot prevent users from watching videos which do not come from “clearly illegal sources”.

Whether or not streaming videos which are being illegally distributed is permitted under § 44a no. 2 is left open by the court.

The court also fails to answer the questions as to whether the films were indeed available on Redtube, whether the recipients of warning letters had indeed watched them and whether the warning letters violated the law.

What does this mean for other streaming services?

What does this judgment mean for users of other streaming services? Not that much really. The Archive AG is not prevented from sending further warning letters in relation to streaming, provided the letters are more narrowly worded and do not include films from sources which are not clearly illegal.

It therefore cannot be assumed that the Redtube warning letter fiasco and the question of the legality of streaming has finally been brought to an end.

Conclusion

It is a shame that the court dodged the decisive question on whether or not viewing illegally provided streams is legal.

In the meantime, the Federal Ministry of Justice has declared that it believes streaming is legal. Our only hope is that the courts soon share this view.

You can find the full length judgment here.

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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