By Chris Cooke —-

The High Court in London last week ruled mainly in favor of Sony Music and Warner Music in their legal battle with radio app TuneIn. The judge rejected the app’s defense that it was simply a sophisticated search engine for radio, reckoning that the tech firm itself was communicating the music contained in each radio station’s stream. With no licences covering much of that communication, TuneIn has infringed the copyrights of the two major record companies.

The lengthy judgement – which considers principles in both UK and European law – potentially sets some interesting precedents regarding the application of copyright rules to innovative digital set-ups that deliver previously territorial services to a global audience. It also means that TuneIn – which has both advertising and premium subscription revenues – will need to get licences from the music industry if it wants to continue making non-UK radio stations available to its UK subscriber base.

In copyright terms, the case centered on whether – by aggregating radio station streams – TuneIn was directly involved in communicating said radio streams to the public. Sony and Warner argued that it was and therefore it needed music licences. TuneIn argued that, because it simply connected users to each radio station’s existing stream, albeit within its own app, it wasn’t itself involved in any communication to the public. Therefore it was the individual stations that were exploiting the songs and recordings and which needed the licences.

The judge considered the copyright liabilities of TuneIn for four separate categories of radio stations. First UK-based stations already licensed by British record industry collecting society PPL whose online webcasts are available via TuneIn. Second non-UK stations that are licensed by the record industry in their home country, but not for the UK. Third, non-UK stations that aren’t even licensed in their home country. And finally a series of US-based stations created bespoke for the TuneIn platform.

After a lengthy discussion about the ins and outs of the so called ‘communication to the public’ element of the sound recording copyright, the judge concluded that TuneIn was liable for both direct and authorizing infringement in connection to all but the UK-based stations contained in its app. As were the non-UK stations themselves, if they knowingly allowed TuneIn to target their online broadcasts to a UK audience.

However, there was no infringement in relation to the UK-based stations, as their PPL licences covered those webcasts, even when delivered via the TuneIn app.

That said, the lawsuit also considered a feature of the TuneIn Pro premium product – no longer available in the UK – that allows users to record a radio station’s stream for later listening.

The judge concluded that, because offering that functionality was not covered by any PPL licences, TuneIn was liable for infringement in regards that function on all the stations considered, including the UK ones. Individual TuneIn users may be able to rely on the so called ‘time-shifting exception’ when making such copies and therefore avoid liability. But only if they met the criteria of that exception, which TuneIn could not ensure.

Elsewhere in the ruling the judge explained in some detail why he rejected TuneIn’s argument that it was just a sophisticated search engine. The radio app pointed out that a user could find all the stations it aggregates through a Google search. But the judge said that the way TuneIn curates stations, allows users to browse by genre and artist, and enables seamless listening within the app, meant it was more than just a search service. He also rejected other arguments to the effect that TuneIn should be protected from liability by the pesky copyright safe harbor.

All in all, it’s a bold judgement that could have a big impact on TuneIn’s entire business model, within the UK at least. Although the TuneIn company itself has played down the significance of the ruling on the basis that it confirmed its argument that no additional music licence is required for connecting people to PPL-licensed UK stations.

The firm’s CEO Juliette Morris told reporters: “The UK Court found in favour of TuneIn on the most important claim, confirming that music radio stations licensed in the UK can be made available through the TuneIn service to TuneIn’s UK users”.

She went on: “While we continue to evaluate the ruling and consider all options, including appeal, we believe the judgment will have very little impact on the company’s revenue and ongoing growth strategies. We won on the most important element of the case, which was the right to provide UK users with access to UK-authorized radio stations”.

“TuneIn is committed to complying with all applicable laws in the countries we serve”, she continued, “and will continue to defend the right to operate a directory service providing listeners access to content freely available on the internet”.

Whether Morris is right to play down the significance of the ruling depends on the extent to which accessing radio stations from around the world attracts users, versus it being an easy way to find domestic stations in one place on a net-connected device. Even with the latter, TuneIn’s service in the UK has been restricted of late after the BBC chose to pull its stations from many iterations of the app for British users in a dispute over listener data.

Of course, the new music licensing obligations regarding the provision of global stations only apply in the UK as a result of this judgement (and even here, TuneIn may still appeal). Though the record industry may well use the precedent set by the High Court in London to seek to extend TuneIn’s copyright liabilities in other markets too.

Welcoming the judgement on Friday, a spokesperson for Sony Music said: “The UK court’s ruling is a critical move in the right direction, and we appreciate its work in reaching a decision in this case. Today’s judgement confirms what we have long known to be true: that TuneIn is unlawfully redistributing and commercializing links to unlicensed music on a widespread scale”

“While this decision marks an important victory against TuneIn’s blatant copyright infringement in the UK”, they added, “the company continues to unlawfully profit from massive global commercialization of unlicensed copyrighted sound recordings by turning a blind eye to basic licensing requirements and hiding behind safe harbor claims to avoid paying music creators”.

“This deprives music creators of compensation for their work, and gives TuneIn an unfair competitive advantage in relation to licensed webcasters that honor their legal obligations and respect the need for artists to receive a fair return on the essential value they provide”.