Recently, there were symbolic jury verdict on YouTube in United States and Germany. The world best video website YouTube is always stick with issues about copyright, and second liabilities because it's a hosting provider which means it does not need t...
Recently, there were symbolic jury verdict on YouTube in United States and Germany. The world best video website YouTube is always stick with issues about copyright, and second liabilities because it's a hosting provider which means it does not need to have a charge of second liabilities rather than direct infringement. YouTube is a video sharing website owned by Google since late 2006, on which users can upload and share videos with everyone who can access to this site. It is classified as Hosting Service Provider among general Online Service Providers(OSPs). Hosting providers usually provide sub-domains or directories for information residing on systems or networks at direction of users. To put it plainly, it's like a warehouse to store information a while. Because of these aspects, hosting providers can cause a indirect infringement while the third parties(users in this situation) directly invade the copyright of copyright holders, so they should deal with second liabilities.
Like those mentioned, there were two verdicts in United States and Germany about YouTube in the past two years. It turned out United States which represents Anglo-American law and Germany which represents the Continental law, situate on opposite position in terms of limiting YouTube's second liabilities. Although they have similar legal principles and terminologies, the verdicts were totally counter to each others. Meanwhile, in Korea, Korea Music Copyright Association made an agreement with YouTube for using copyrighted materials on 2010, so there are no conflicts with YouTube so far. However, Korea became world famous as great entertainment business includes k-pop music, music videos, dramas and so on, so now it's time to concern about protecting copyright especially on YouTube.
Within these necessity, this article provides comparisons between United States' and Germany's law clauses which treat copyright infringements individually, moreover will draw comparisons with some legal precedents from each country, then will try to find best solutions, stable countermeasures for ourselves. For making it exquisitely, first we will deal with key elements of liabilities issues: Direct infringement and Indirect infringement. Next, in describing two standpoints as limited and open-ended, which explains second liabilities limitations. In determining when an OSP can be held liable, the determination of the type of liability that is applicable allows us to know whether the OSP will have bear the weighty burden of a with-fault liability or a strict liability. United States would be defined as a limited, with-fault part, which means OSPs are understood to have a minimum level of liabilities. In this case, OSP would be held responsible if it intentionally violates the rights of others. Meanwhile, Germany has open-ended awareness of OSPs liabilities so it could be unlimited. That means OSP will be held liable regardless of its knowledge and control ober the material that is disseminated through its facilities. This system is the most restrictive because OSP can be stated as being responsible even though it does not have any knowledge or control over certain material.
Specifically, United States courts have developed several common law doctrines of secondary liability: contributory infringement, vicarious infringement and inducement. Also in Germany they elaborated a special concept: Störerhaftung. This word could be translated into disturber liability and literally they measure OSPs' liability as a disturbers' which concerns their liabilities comprehensive. In Korea, we only have assistant liability on written law, and use those concepts adopted from United States' and Germany's precedents. Assistant liability has widest range, so it includes almost every elements of second liabilities. This may refers that we have too many inevitable weak points to make a right judge to distinguish genuine second liabilities. In sequence, this categorizes second liabilities which is ranked by relative value with those elements that consist each liability. With this category, we can gauge how much and which burden that OSP would have.
In this regards, this article makes a conclusion that we can adopt a concept of Störerhaftung. First it's hard to charge assistant liability cause YouTube doesn't make direct infringement. Second, vicarious and contributory infringement cannot be adjusted owing not to be with actual contributions or immediate benefits from those materials. Third, YouTube does not try to distribute any tools for infringements, so they can make evasion from inducement. So there will be only one choice to make; Störerhaftung. It sounds like too much burden to YouTube cause Störerhaftung imposes responsibilities for upcoming infringements in the future, and it assumes that OSPs have liability if they enthusiastically provide possibilities to make infringements. However, for YouTube, it's proper level of second liabilities with various reasons as is seen, so we can borrow that disturber concepts for weighing the liabilities.
Existing law in Korea on OSP liability is unsettled and uncertain especially for YouTube, cause we didn't have any chances to deal with copyright issues with this kind of OSP. Thereby, this article tried to seek legislative clarification of copyright liability for YouTube and found a appropriate idea from Germany; Störerhaftung.
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