In 2017, Sony Music Entertainment and Warner Music Group sued US-based radio aggregator TuneIn for infringing their copyrights in the UK.
TuneIn offers some premium streams to customers but describes itself as an “audio guide”, primarily acting as an index of streams offered by third-parties. However, when TuneIn offered links to radio stations unlicensed for transmission in the UK, Warner and Sony believed that amounted to a breach of their rights, when those channels carried their copyrighted content.
High Court Finds TuneIn Liable for Copyright Infringement
In a 2019 judgment, Judge Birss highlighted the opposing positions of the parties, noting that the plaintiffs believed that ruling in favor of the defendants would “fatally undermine copyright” and TuneIn believing that if the Court ruled in favor of the labels, that would “break the Internet”.
The case itself was extremely complex but could be broken down into a handful of basic arguments. The labels argued that in order to facilitate access to channels carrying their copyright works, TuneIn needed a license. TuneIn argued that since it did not store any music and merely provided hyperlinks to content made freely available on the Internet, it did not.
Judge Birss found TuneIn’s argument unpersuasive, ruling that TuneIn’s ‘making available’ amounted to a communication to the public. When that communication involved radio stations that are already licensed for use in the UK, TuneIn did not infringe the labels’ rights. However, when TuneIn provided links to unlicensed stations containing the plaintiffs’ works, that amounted to a breach of copyright.
Judge Birss ultimately declared TuneIn “liable for infringement by authorization and as a joint tortfeasor.”
TuneIn Blocks Non-UK Stations, Files Appeal
In December 2019, the High Court allowed both parties to appeal the decision but pending the outcome, TuneIn took action which caused widespread disruption for its UK users.
Around September last year, TuneIn began geo-blocking thousands of stations broadcast from outside the UK, whether they infringed the labels’ copyrights or not. Listeners found that using a VPN could restore service but for the majority who chose not to deploy this workaround, access to stations was severely limited.
“Due to a court ruling in the United Kingdom, we will be restricting international stations to prohibit their availability in the UK, with limited exceptions. We apologize for the inconvenience,” the company wrote time and again on Twitter in response to complaints.
Court of Appeal Upholds High Court Ruling
In a judgment handed down Friday, Sir Geoffrey Vos (the second most senior judge in England and Wales), Lady Justice Rose, and Lord Justice Arnold found in favor of the labels by upholding the decision of the High Court. Given the depth and detail of the ruling, the judges could not be accused of being anything less than extremely thorough.
For example, the concept of “communication to the public” was examined in the light of 25 previous judgments handed down by the Court of Justice of the European Union over the past 14 years, including the GS Media, Filmspeler, Pirate Bay, and Tom Kabinet cases.
While the UK left the EU on January 31, 2020, and the transition period ended on December 31, 2020, the Court of Appeal noted that this does not affect “EU-derived domestic legislation” and that remains in effect until it is repealed or amended. The Court also highlighted that 24 of the 25 judgments involve “retained EU case law”, meaning that they continue to form part of domestic law post-Brexit.
According to the judgment, TuneIn asked the Court to depart from the decisions of the CJEU on hyperlinking (in respect of an injunction valid from January 1, 2021) but that was rejected. Indeed, the numerous cases revisited, including those listed above, appear to have left TuneIn with little room to counter the judgment of the High Court, with the Court of Appeal rejecting the radio aggregator’s criticism of the judge’s findings.
Music Industry Welcomes The Decision
“Today’s decision by the Court of Appeal of England and Wales confirms that TuneIn can only operate with appropriate licenses from right holders and therefore cannot continue to blatantly disregard its obligation to ensure that its service is lawful,” a statement from IFPI reads.
“This is a big win for those investing in and creating music, reaffirming that services, like TuneIn, which generate revenues by providing online access to recorded music must be licensed to do so. Operating lawfully with an appropriate license is essential if music creators are to be fairly compensated.”
The judgment can be found here (pdf)