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German court says stream-ripping not covered by private copy exception

By | Published on Tuesday 27 November 2018


The German record industry has welcomed a ruling in the Appeal Court of Munich which confirms that a stream-ripping site that copies tracks from internet radio feeds cannot rely on the private copy exception to avoid liability for copyright infringement.

Stream-ripping sites have been at the top of the music industry’s piracy gripe list for some time, of course. Most platforms of this kind turn streams on websites like YouTube into permanent MP3 downloads. However, Germany-based MusicMonster.FM goes looking for tracks to rip in the feeds of various internet radio stations.

The operators of stream-ripping sites have employed various arguments as to why they shouldn’t be liable for copyright infringement. Some insist that no copies of the ripped track ever actually sit on their servers. Although even if that’s true they could still be liable for contributory copyright infringement. Others have pleaded the good old safe harbour.

For its part, MusicMonster.FM argued that its service was protected under the private copy exception. This is a copyright exception that exists in many countries – but not the UK – that says individuals can make copies of recordings without licence providing said copies are for their own private use. Quite how this exception works varies from country to country.

MusicMonster.FM said that its users were employing their private copy right when they used its platform to grab copies of tracks from radio feeds, and therefore it couldn’t itself be liable for any infringement. But when Sony Music went legal, the courts did not concur.

Perhaps unsurprisingly, the Munich Regional Court last year ruled that it wasn’t the user making copies when MusicMonster.FM ripped tracks from internet radio feeds, but the stream-ripping company itself. Therefore the private copy exception didn’t apply and MusicMonster.FM was making copies of Sony’s recordings without licence. The Appeal Court of Munich upheld that ruling last week.

Welcoming the judgement, the boss of German record industry trade organisation BVMI, Dr Florian Drücke, said: “This is a very important decision which helps bring further clarity in this area. Services are still trying to profit as freeriders, under the pretext of the personal copy rule, without obtaining licences. Hence, the industry will continue to take action against such brazen business models, which unfairly harm the legal digital market, mislead consumers and ignore the rights of artists and their partners”.

The trade group’s legal and political affairs chief René Houareau added: “Recent case law on digital services shows that the courts now differentiate very clearly between legitimate and illegitimate business models and are holding rights infringing services accountable, to the benefit of rightholders and end users”.