Out-Law Analysis | 18 Feb 2019 | 2:10 pm | 2 min. read
The decisions demonstrate how new technologies can find themselves in grey areas of copyright law.
In contrast to a traditional radio broadcaster, radio stream ripping services offer their users, upon payment of a fee, the ability to search for music by scanning various internet radio streams and to then 'rip' out the song and make a copy of the track. The MP3 file therefore enables the user to copy the music file, to save it and to listen to it whenever they like, irrespective of whether or not they have access to a radio stream.
Many radio shows depend on copyright-protected content, often music. Radio broadcasters obtain licenses from the right holders to use the music in their radio shows. Radio stream ripping services do not obtain a license for their service. They consider their actions as not relevant to copyright since it is the user who initiates the scanning and ripping process and it is the user who receives the file. For those actions, the argument goes, the user is able to rely on the private copying exception, which exists in EU copyright law and has been implemented into Germany's copyright regime.
In separate recent decisions, the higher regional courts of Munich and Hamburg held that the radio stream ripping services MusicMonster and ZEEZEE were responsible for copyright infringement.
The judges rejected the arguments put forward by the operators of the services and instead favoured the legal interpretations advanced by the rights holders that had sued the companies. The courts held that both services produce copies of copyright-protected content without a license and that the activities do not fall within the protection of the private copying exception.
Central to the outcome of the cases were the court's findings on the question of who is responsible for making the copies generated through radio stream ripping services.
In November 2017, the Court of Justice of the EU (CJEU) held that it is the user who makes the copy if he or she initiates a completely automated process. That finding came in a case involving cloud-based video recorder VCAST.
In their rulings, however, the Munich and Hamburg courts found that the services that scan through internet radio streams need to be considered as being actively involved in the copying process, even though the process may be automatic. According to the courts, once the user chooses a song, they lose control over where and when a copy of the song is made. As a result, they determined that it is not the user that makes the copy, but the service, and that since MusicMonster and ZEEZEE get paid for their services by the users, their copies could not be considered as private copies.
According to the German courts, the business model of the radio stream ripping services is illegal. However, it would be surprising if this is not tested further before Germany's Federal Court of Justice. Since the legal question that arises concerns a component of the EU's copyright law framework, it is also highly likely that the CJEU will be invited to decide on the legality of such services in future.
The question of the scope of the private copying exception goes far beyond radio stream ripping services too. Services that obtain music files from non-radio services such as Spotify or platforms like YouTube are likely to take an interest in the case law in this area, as are other services that also push the boundaries of the private copying exception.
Frankfurt-based Nils Rauer is an expert in copyright law at Pinsent Masons, the law firm behind Out-Law.com.