Business News Digital Labels & Publishers Legal

TuneIn’s music licensing battle with the record industry reaches the court of appeal

By Chris Cooke | Published on Tuesday 23 February 2021

The appeal hearing in the big TuneIn v the majors legal battle has kicked off in London. As expected, the radio station aggregator was again keen to position itself as simply a sophisticated search engine, meaning that it shouldn’t be any more liable for copyright infringement by connecting people to foreign radio stations than Google.

Sony Music and Warner Music together sued TuneIn through the UK courts arguing that when radio stations were accessed via its app a separate music licence was required, even if the radio station itself was properly licensed. Because TuneIn didn’t have any music licences it was therefore liable for copyright infringement.

In the original high court case, TuneIn countered that it was just a sophisticated audio-centric search engine that connected people to a radio station’s own stream and therefore it wasn’t itself involved in any communication to the public of any music, and therefore it didn’t need licences.

In something of a mixed bag ruling, the high court said that UK radio stations accessed via the TuneIn app were covered by those stations’ music licences from UK record industry collecting society PPL.

However, non-UK based radio stations were not licensed to webcast music within the UK, even if those stations had music licences covering their respective home countries. And therefore both TuneIn and those international stations could be liable for copyright infringement if – by being featured in the TuneIn UK app – they were specifically targeting UK listeners.

Following that ruling in 2019, last year TuneIn started blocking its UK users from accessing international stations via its app. At the time it said on Twitter: “Due to licensing issues, we have had to restrict content out of the UK – we apologise for the inconvenience”.

Seeking to over-turn the high court ruling, TuneIn’s legal reps were in the UK court of appeal yesterday. According to Law360, they presented pretty similar arguments to the original hearing. UK listeners can access webcasts from non-UK radio stations via a Google search, they argued, so what’s the difference if they are connected to that station’s output via the TuneIn app?

The appeal judges noted that one difference is that with a Google search the user is clearly redirected away from the search engine’s website to the foreign radio station’s website. Whereas with TuneIn, it appears that the station’s output is playing via the app, even though technically TuneIn is also simply connecting the user to the station’s own online platform.

In the high court that difference was seen as significant, both in terms of it allowing TuneIn to better commercialise the experience, and in confirming the app’s more proactive role in directing the foreign radio station to a UK audience. That significance was sufficient to determine that TuneIn was involved in a communication to the public of the music those foreign stations were airing, meaning TuneIn as well as the foreign station were liable for ensuring that music was properly licensed.

The app’s lawyers told the appeals court yesterday that a search engine redirecting a user to radio station’s web page and TuneIn showing that station’s content within the app were merely “presentational differences”. And those were not sufficient enough to conclude that TuneIn had copyright liabilities when a more conventional search engine did not.

Reps for the majors are due to present their arguments later today, though in a written submission they have already stated that the idea TuneIn is basically a search engine providing links to radio stations “is entirely divorced from reality”.