Opinion of the Advocate General — ECLI:EU:C:2020:586
Date: 2020-07-16
Language of the case: German
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services;Copyright and related rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
6 November 2018 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
13 September 2018 
Applicant: 
LF 
Defendants: 
1. Google LLC 
2. YouTube Inc. 
3. YouTube LLC 
4. Google Germany GmbH 
  
Subject matter of the main proceedings 
Action for an injunction and damages on grounds of copyright infringement 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred 
1. Does the operator of an internet video platform on which videos containing 
content protected by copyright are made publicly accessible by users without 
EN 
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the consent of the rightholders carry out an act of communication within the 
meaning of Article 3(1) of Directive 2001/29/EC if 
– the operator earns advertising revenue by means of the platform, 
– the upload process takes place automatically and without material 
being seen in advance or controlled by the operator, 
– in accordance with the conditions of use, the operator receives a 
worldwide, non-exclusive and royalty-free licence for the videos for 
the duration for which the videos are posted, 
– in the conditions of use and during the upload process, the operator 
points out that copyright-infringing content may not be posted, 
– the operator provides tools with which rightholders can take steps to 
block infringing videos, 
– on the platform, the operator prepares search results in the form of 
rankings and content categories, and displays to registered users an 
overview that is oriented towards previously seen videos and that 
contains recommended videos which can be displayed to registered 
users, 
if the operator is not specifically aware of the availability of copyright-
infringing content or, after having become aware, expeditiously deletes that 
content or expeditiously disables access thereto? 
2. If Question 1 is answered in the negative: 
Does the activity of the operator of an internet video platform under the 
conditions described in Question 1 come within the scope of Article 14(1) of 
Directive 2000/31/EC? 
3. If Question 2 is answered in the affirmative: 
Must the actual knowledge of the illegal activity or information and the 
awareness of the facts or circumstances from which the illegal activity or 
information is apparent relate to specific illegal activities or information 
pursuant to Article 14(1) of Directive 2000/31/EC? 
4. Also if Question 2 is answered in the affirmative: 
Is it compatible with Article 8(3) of Directive 2001/29/EC if the rightholder 
is in a position to obtain an injunction against a service provider whose 
service consists of the storage of information provided by a recipient of the 
service, and whose service has been used by a recipient of the service to 
infringe a copyright or related right, only if such an infringement has taken 
place again after notification of a clear infringement has been provided? 
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5. If Questions 1 and 2 are answered in the negative: 
Is the operator of an internet video platform under the conditions described 
in Question 1 to be regarded as an infringer within the meaning of the first 
sentence of Article 11 and Article 13 of Directive 2004/48/EC? 
6. If Question 5 is answered in the affirmative: 
Can the obligation of such an infringer to pay damages pursuant to 
Article 13(1) of Directive 2004/48/EC be made subject to the condition that 
the infringer acted intentionally with regard both to his own infringing 
activity and to the infringing activity of the third party, and knew, or ought 
reasonably to have known, that users use the platform for specific acts of 
infringement? 
Provisions of EU law cited 
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 
2001 on the harmonisation of certain aspects of copyright and related rights in the 
information society, in particular Articles 3 and 8 
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 
2000 on certain legal aspects of information society services, in particular 
electronic commerce, in the Internal Market (‘Directive on electronic commerce’), 
in particular Articles 14 and 15 
Directive 2004/48/EC of the European Parliament and of the Council of 29 April 
2004 on the enforcement of intellectual property rights, in particular Articles 11 
and 13 
Provisions of national law cited 
Gesetz über Urheberrecht und verwandte Schutzrechte (Law on copyright and 
related rights; ‘the UrhG’), in particular Paragraphs 97, 99, 101, 102a 
Telemediengesetz (Law on telemedia; ‘the TMG’), in particular Paragraph 10 
Brief summary of the facts and procedure 
1 The applicant is a music producer and was the co-proprietor of the music 
publishing company ‘Petersongs Musikverlag KG’. He claims that he is the 
proprietor of ‘Nemo Studios’. 
2 The third defendant operates the internet platform YouTube, on which users 
upload their own video files free of charge and can make them accessible to other 
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internet users. The first defendant, Google LLC, is the sole shareholder and legal 
representative of the third defendant. 
3 On 20 May 1996, ‘Nemo Studio LF’ and the artist ME entered into a worldwide 
exclusive artist contract relating to the use of audio and audiovisual recordings of 
her performances. 
4 The album ‘A Winter Symphony’ containing musical works interpreted by the 
artist was released in November 2008. ME began her ‘Symphony Tour’ on 
4 November 2008, on which she performed the works included on the album.  
5 On 6 and 7 November 2008, music pieces from the album ‘A Winter Symphony’ 
and from private ‘Symphony Tour’ concert recordings, linked to still and moving 
images, were posted on the internet platform operated by the third defendant. The 
applicant thereupon requested that Google issue cease-and-desist declarations. On 
the basis of the screen printouts sent by the applicant, the third defendant 
manually determined the internet addresses (URLs) of the videos and disabled 
access. 
6 On 19 November 2008, sound recordings from the artist’s performances, linked to 
still and moving images, could once again be retrieved on the third defendant’s 
internet platform. 
7 The applicant brought an action for an injunction, disclosure of information, and a 
declaration of liability for damages against the first and third defendants. He based 
these claims on his own rights as a producer of the audio recording ‘A Winter 
Symphony’ and on his own rights and those derived from the artist. 
8 After the action was partly successful at first and second instance, the applicant 
pursued his claims by way of his appeal on a point of law. 
Brief summary of the basis for the request 
9 The court dealing with the appeal on the merits assumed that, in relation to 
specific music tracks, the applicant was able to bring an action against the first 
and third defendants for an injunction on the basis of Paragraphs 97 and 99 UrhG 
and for disclosure of information on the basis of Paragraph 101 UrhG. Although, 
as the hosting service provider, the third defendant benefited from the exemption 
under Article 14(1) of Directive 2000/31 and Paragraph 10 TMG, it did not play 
any active role in the posting of the content on the platform and did not adopt that 
third-party content as its own either. It lacked the intent required in order to be 
liable as a participant, as it did not have knowledge of specific acts of 
infringement. However, owing to the infringement of the applicant’s rights over 
seven specifically designated tracks of the studio album, the third defendant was 
liable to an injunction as the ‘Störer’, a person under German law who, without 
being the author of the infringement or complicit in it, contributes to the 
infringement intentionally. It failed to discharge its obligations as to conduct in 
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this respect, because it had been notified of specific acts of infringement and did 
not expeditiously delete or disable access to the content objected to. 
10 The court dealing with the appeal on the merits also assumed that, as the third 
defendant was liable only as the ‘Störer’, it was not obliged to pay damages, 
meaning that the claim for disclosure of information regarding the extent of the 
acts of infringement and the sales generated thereby was unfounded. By contrast, 
the first and third defendants had to specify the names and addresses and, if no 
postal addresses were available, the email address — but not the IP addresses and 
bank details — of the users who had uploaded music tracks to the platform under 
a pseudonym. 
11 The success of the applicant’s appeal on a point of law depends on whether, under 
the circumstances established in the case in dispute, the third defendant’s conduct 
constitutes an act of communication within the meaning of Article 3(1) of 
Directive 2001/29 (in this regard, see Question 1 referred). If this is answered in 
the negative, the question then arises as to whether the activity of the third 
defendant comes within the scope of Article 14(1) of Directive 2000/31 (in this 
regard, see Question 2 referred). If this question is to be answered in the 
affirmative, the question then arises as to whether the actual knowledge of the 
unlawful activity or information and the awareness of the facts or circumstances 
from which the unlawful activity or information is apparent must relate to specific 
unlawful activities or information pursuant to Article 14(1) of Directive 2000/31 
(in this regard, see Question 3 referred). The question then also arises as to 
whether it is compatible with Article 8(3) of Directive 2001/29 if the rightholder 
is in a position to obtain an injunction against a service provider whose service 
consists in storing information provided by a recipient of the service, and has been 
used by a recipient of the service to infringe copyright or a related right, only if 
such an infringement has taken place again after notification of a clear 
infringement has been provided (in this regard, see Question 4 referred). 
12 If the conduct of the third defendant neither constitutes an act of communication 
within the meaning of Article 3(1) of Directive 2001/29 nor comes within the 
scope of Article 14(1) of Directive 2000/31, the question then arises as to whether 
the third defendant must nevertheless be regarded as an infringer within the 
meaning of the first sentence of Article 11 and Article 13 of Directive 2004/48 (in 
this regard, see Question 5 referred). If this question is to be answered in the 
affirmative, the question then arises as to whether the obligation of such an 
infringer to pay damages pursuant to Article 13(1) of Directive 2004/48 can be 
made subject to the condition that the infringer must have acted intentionally with 
regard both to his own infringing activity and to the infringing activity of the third 
party, and knew, or ought reasonably to have known, that users use the platform 
for specific acts of infringement (in this regard, see Question 6 referred). 
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Question 1 referred 
13 As the rights of communication to the public in the form of making subject matter 
available to the public that were asserted by the applicant constitute a harmonised 
right pursuant to Article 3(1) and (2)(a) and (b) of Directive 2001/29, the 
corresponding provisions of the German UrhG must be interpreted in accordance 
with the directive.  
14 The concept of ‘communication to the public’ within the meaning of Article 3(1) 
of Directive 2001/29 requires an individual assessment, in the context of which it 
is necessary to take into account several complementary criteria. Amongst those 
criteria, the Court of Justice has emphasised the indispensable role played by the 
user and the deliberate nature of his intervention (see, most recently, judgment of 
14 June 2017, Stichting Brein, C-610/15, EU:C:2017:456, paragraphs 23 to 26). 
15 It is doubtful whether, under the circumstances established in the case in dispute, 
the activity of the third defendant constitutes an act of communication within the 
meaning of Article 3(1) of Directive 2001/29. The present Chamber takes the 
view that this may be assumed, at best, in relation to the seven tracks from the 
album ‘A Winter Symphony’, in respect of which, according to the findings of the 
court dealing with the appeal on the merits, the third defendant knew that they had 
been provided illegally and either did not delete or disable access to them or did 
not do so in good time. 
16 Regarding the criterion of the indispensable role played by the user and the 
deliberate nature of his intervention, an act of communication requires that the 
user intervenes in full knowledge of the consequences of his conduct — that is to 
say, in a deliberate and targeted manner — to provide third parties with access to a 
protected work or to a protected service. In this respect, it is sufficient if third 
parties have access to a protected work or to a protected service irrespective of 
whether they avail themselves of that opportunity (cf. judgment of 14 June 2017, 
Stichting Brein, C-610/15, EU:C:2017:456, paragraph 31). 
17 The application of the criteria laid down by the Court of Justice militates against 
the assumption of an indispensable role on the part of the third defendant if it does 
not have knowledge of the posting of copyright-infringing content. It is true that 
the assumption of an indispensable role does not preclude the possibility that the 
third defendant does not post content on its platform itself, but rather enables third 
parties, through the provision of the video portal, to make content that may 
include copyright infringing content available to users of the portal (cf. judgment 
of 14 June 2017, Stichting Brein, C-610/15, EU:C:2017:456, paragraph 36). The 
third defendant’s intervention also involves a commercial interest, because it earns 
advertising revenue via the operation of the portal. However, the assumption of an 
indispensable role requires full knowledge of the consequences of the conduct, 
and that knowledge must also relate to the absence of consent of the copyright 
holder (cf. judgment of 26 April 2017, Stichting Brein, C-527/15, EU:C:2017:300, 
paragraph 41). On account of the fact that the posting of the videos takes place 
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automatically, the third defendant did not have any knowledge of the availability 
of copyright-infringing content up to the point at which it was notified by the 
copyright holder. In its conditions of use and during the upload process, it informs 
users that the posting of copyright-infringing content is not permitted. It also 
provides tools with which copyright holders can take action against the 
availability of copyright-infringing content. The present Chamber takes the view 
that the assumption of an indispensable role is therefore conceivable, at best, if, 
after becoming aware of the availability of copyright-infringing content, the third 
defendant did not expeditiously delete it or did not expeditiously disable access to 
it. 
Question 2 referred 
18 It is true that, as a hosting service, offering an internet platform for storing 
information provided by third parties does in principle come within the scope of 
Article 14(1) of Directive 2000/31 (cf. judgment of 16 February 2012, SABAM, 
C-360/10, EU:C:2012:85, paragraph 27). However, the liability exemption under 
Article 14(1) of Directive 2000/31 is not applicable to a hosting service provider 
where the hosting service provider, instead of confining itself to providing the 
hosting service neutrally by a merely technical and automatic processing of the 
data provided by its customers, plays an active role of such a kind as to give it 
knowledge of, or control over, those data (cf., in this regard, judgment of 12 July 
2011, L’Oréal, C-324/09, EU:C:2011:474, paragraphs 112 to 116). 
19 Although, according to the findings of the court dealing with the appeal on the 
merits, the third defendant did not associate the copyright-infringing videos with 
advertising in the case in dispute, the question that arises — and requires 
clarification from the perspective of EU law — is whether the defendant played an 
active role that precludes the application of Article 14(1) of Directive 2000/31 
under the other circumstances of the case in dispute (see, in this regard, Question 
1 referred). 
Question 3 referred 
20 The present Chamber takes the view that this question should be answered in the 
affirmative. It is not sufficient if the provider is generally aware or knows that its 
services are used for illegal activities of any nature. This is evident just from the 
wording of the provision and from the use of the definite article to refer to the 
unlawful activity or information. Moreover, this follows from the fact that it is 
only in relation to specific information that the provider can fulfil its obligation to 
remove or to disable access to the unlawful information as soon as he has obtained 
such knowledge or awareness (Article 14(1)(b) of Directive 2000/31). A 
notification regarding copyright infringement must therefore be specific enough 
for the recipient to be able to identify the copyright infringement without 
difficulty and without conducting a detailed legal or factual examination. If a legal 
position protected by copyright law is being asserted, it is therefore necessary to 
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identify the works protected or the service protected and to describe the form of 
infringement objected to, and to provide sufficiently clear evidence of the 
entitlement under copyright law of the parties concerned. 
Question 4 referred 
21 Pursuant to Article 8(3) of Directive 2001/29, Member States are required to 
ensure that rightholders are in a position to apply for an injunction against 
intermediaries whose services are used by a third party to infringe a copyright or 
related right. 
22 According to the case-law of the Bundesgerichtshof (Federal Court of Justice), a 
person who — without being a perpetrator or participant — deliberately 
contributes to the infringement of the protected legal interest in any way may have 
an action brought against him as a ‘Störer’. This liability requires the infringement 
of duties as to conduct, the scope of which is determined by what can reasonably 
be expected in each individual case. According to the case-law of the 
Bundesgerichtshof, if the ‘Störer’ is a service provider whose service consists in 
storing information provided by a user, in principle he can be obliged to refrain by 
way of an injunction only if such an infringement has taken place again after 
notification of a clear infringement has been provided. 
23 The present Chamber takes the view that Question 4 referred should be answered 
in the affirmative. Pursuant to Article 15(1) of Directive 2000/31, it is not possible 
to impose on a service provider whose service consists of the storage of 
information provided by a recipient of the service a general obligation to monitor 
the information which it stores, or a general obligation actively to seek facts or 
circumstances indicating unlawful activity. Moreover, pursuant to Article 14(1) of 
Directive 2000/31, such a service provider is not liable for the information stored 
at the request of a recipient of the service, on condition that (a) the provider does 
not have actual knowledge of unlawful activity or information and, as regards 
claims for damages, is also not aware of facts or circumstances from which the 
unlawful activity or information is apparent, or (b) the provider, upon obtaining 
such knowledge or awareness, acts expeditiously to remove or to disable access to 
the information. According to this, the operator of an internet platform for storing 
information provided by third parties that does not have actual knowledge of 
unlawful activity or information is not liable for an injunction either. 
Question 5 referred 
24 Directive 2004/48, which, pursuant to Article 2(1), is applicable to any 
infringement of intellectual property rights as provided for by EU law or by the 
national law of the Member State concerned, applies without prejudice to 
Articles 2 to 6 and Article 8 of Directive 2001/29 (Article 2(2) of Directive 
2004/48) and does not affect Articles 12 to 15 of Directive 2000/31 (Article 2(3) 
of Directive 2004/48). It draws a distinction between the infringer and 
intermediaries whose services are used by a third party to infringe an intellectual 
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property right (cf. Articles 11 and 13 of the directive). If their services are used by 
a third party to infringe an intellectual property right or related right, such 
intermediaries are also referred to as intermediaries in Article 8(3) of Directive 
2001/29 and, if their services consist of the storage of information provided by a 
recipient of the service, they are referred to as service providers in Article 14(3) of 
Directive 2001/31.  
25 If the conduct of the third defendant constitutes an act of communication within 
the meaning of Article 3(1) of Directive 2001/29, the third defendant is to be 
regarded as an infringer within the meaning of Directive 2004/48, against which 
an action for an injunction (the first sentence of Article 11 of Directive 
2004/48/EC; Paragraph 97(1) UrhG), the payment of damages (Article 13(1) of 
Directive 2004/48; Paragraph 97(2) UrhG) and the recovery of profits 
(Article 13(2) of Directive 2004/48; Paragraph 102a UrhG) can be brought. If the 
conduct of the third defendant comes within the scope of Article 14(1) of 
Directive 2000/31, the third defendant is to be regarded as an intermediary within 
the meaning of Directive 2004/48 the liability of which is excluded if the 
requirements of (a) and (b) of that provision have been met and which, failing 
that, is liable as an infringer. 
26 It is questionable whether the third defendant is also to be regarded as an infringer 
within the meaning of Directive 2004/48 — which can be liable not only for an 
injunction, but also for the payment of damages and the recovery of profits — if 
its conduct neither constitutes an act of communication within the meaning of 
Article 3(1) of Directive 2001/29 nor comes within the scope of Article 14 of 
Directive 2000/31. The present Chamber takes the view that this question should 
be answered in the affirmative because, pursuant to Directive 2004/48, a person 
who participates in an act of infringement must be either an intermediary or an 
infringer, and can therefore be an infringer only if his participation is not confined 
to the provision of services that are used by a third party to infringe an intellectual 
property right. According to this, the recipient of a service who plays an 
indispensable role in the act of communication to the public and who intervenes in 
full knowledge of the consequences of his conduct — that is to say, in a deliberate 
and targeted manner — to provide third parties with access to a protected work or 
to a protected service is an infringer; the present Chamber takes the view that the 
service provider who does not confine himself to a neutral role in the act of 
communication to the public by users of his platform, but rather plays an active 
role in that act is in fact also an infringer. 
Question 6 referred 
27 Pursuant to the first sentence of Article 13(1) of Directive 2004/48, Member 
States are required to ensure that the competent judicial authorities, on application 
of the injured party, order the infringer who knowingly, or with reasonable 
grounds to know, engaged in an infringing activity, to pay the rightholder 
damages commensurate with the actual prejudice suffered by him as a result of the 
infringement. 
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28 Pursuant to the first sentence of Paragraph 97(2) UrhG, a person who unlawfully 
infringes copyright or another right protected under the UrhG is obliged to pay the 
aggrieved party damages for the resulting loss if he commits the act intentionally 
or negligently. According to the case-law of the Bundesgerichtshof, the question 
of whether someone is liable for a criminal offence such as the infringement of a 
property right as a perpetrator or participant under civil law must in principle be 
assessed in accordance with the legal principles developed in criminal law. For the 
third defendant, who is to be regarded as an infringer within the meaning of the 
first sentence of Article 11 and Article 13 of Directive 2004/48 because it played 
an active role in the infringement of rights of the applicant by the users of its 
platform, liability as an accessory comes into consideration according to these 
principles. An accessory is someone who has intentionally provided someone else 
with assistance with their intentionally committed unlawful act. 
29 The question then arises as to whether the obligation of such an infringer to pay 
damages pursuant to the first sentence of Article 13(1) of Directive 2004/48 can 
be made subject to the condition that the infringer acted intentionally with regard 
both to his own infringing activity and to the infringing activity of the third party. 
30 It is possible that, in such situations also, it must be sufficient for a claim for 
damages pursuant to the first sentence of Article 13(1) of Directive 2004/48 if the 
infringer reasonably ought to have known that he was committing an act of 
infringement. Liability for damages on the part of the accessory would then come 
into consideration as soon as there is negligence. The liability of a service 
provider that plays an active role would therefore be stricter than that of a service 
provider that plays a neutral role and therefore comes within the scope of 
Article 14 of Directive 2000/31; pursuant to Article 14(1)(a) of Directive 2000/31, 
the liability of the latter requires actual knowledge of the unlawful activity or 
information. 
31 The further question then also arises as to what requirements are to be imposed on 
the intent or — if it is sufficient — the negligence of the infringer in relation to 
the third party’s act of infringement. According to the case-law of the 
Bundesgerichtshof, in relation to the main act of the third party the participant 
must have at least conditional intent, which must include awareness of the 
illegality. Thus, the intent and the awareness of the illegality must relate to a 
specific main act. For the assumption of liability for damages as a participant on 
the part of the operator of an internet platform, it is therefore not sufficient that the 
operator knew that users use the platform to infringe intellectual property rights if 
that knowledge does not relate to specific acts of infringement. 
32 In the judgments of 26 April 2017, Stichting Brein (C-527/15, EU:C:2017:300, 
paragraph 50) and of 14 June 2017, Stichting Brein (C-610/15, EU:C:2017:456, 
paragraph 45), the Court of Justice found that it was sufficient that the respective 
defendants knowingly carried out a high-risk act and generally expected unlawful 
uses. If, for a claim for damages against a service provider that plays an active 
role, it were sufficient that it only generally knew or reasonable ought to have 
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known that rights were being infringed on the platform, its liability would also be 
stricter in this respect than that of a service provider that plays a neutral role and 
therefore comes within the scope of Article 14 of Directive 2000/31.