“YouTube II”

• a) If the operator of a video-sharing platform, who knows or ought to know, in a general sense, that users of its platform are making protected content available to the public illegally via its platform, refrains from putting in place the appropriate technological measures that can be expected from a reasonably diligent operator in its situation in order to counter credibly and effectively copyright infringements on that platform, the operator itself makes a public communication of the infringing content uploaded by users within the meaning of Sec. 15(2) first and second sentences, No. 2, Secs. 19a, 78(1) No. 1, Sec. 85(1) first sentence, third case Copyright Act in conjunction with Art. 3(1) and (2)(a) and (b) of Directive 2001/29/EC. Merely reactive technical measures that make it easier for rightholders to find infringing content that has already been uploaded or to issue related notices to the platform operator are not sufficient to qualify as measures to counter credibly and effectively copyright infringements (following CJEU, decisions of 22 June 2021 C-682/18 and C-683/18, GRUR 2021, 1054 para. 84 = WRP 2021, 1019 YouTube and Cyando).

• b) Synchronisation in the sense of combining a sound carrier with images constitutes an independent type of use that can be the subject of a separate grant of rights.

• c) A claim for unjust enrichment under Sec. 812(1) first sentence, second case Civil Code due to interference with a right protected under the Copyright Act presupposes the immediacy of the transfer of assets in the relationship between the copyright owner and the defendant. This is not the case if a parent company is alleged to have been deprived of benefits that have arisen in the business operations of its subsidiary.

• d) The right to information under Sec. 101(3) Copyright Act does not include information about the bank details of the users of the services (continuation of decision of the Federal Supreme Court, 10 December 2020 I ZR 153/17, GRUR 2021, 470 = WRP 2021, 201 YouTube-Drittauskunft II).

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