Anyone old enough to have enjoyed music before the dawn of the Internet will probably have recorded music from the radio.
Armed with C60 or more capacious C90 cassettes, it was a tradition in many countries to press play and record when the local chart shows were airing, thus capturing the pop hits of the day.
The resulting recordings were deliberately peppered with DJ chatter to reduce their quality but for many, this was the first step in enjoying music on repeat and on demand, without buying original vinyl.
These days music platforms are much more advanced but a service offered over the past few years by Germany-based ZeeZee presented a new take on these old traditions.
Users of ZeeZee.de were able to make requests to the service to provide music tracks for download. However, instead of licensing tracks like Spotify might, for example, the service scanned online radio stations while ‘listening’ out for the tracks to be played. At this point ZeeZee would record them before offering the user the opportunity to download.
This activity attracted the negative attentions of record labels in Germany, Universal Music in particular. As far back as 2014, the music giant discovered that the album Mit den Gezeiten by local band Santiano (which had been a number one hit) was being offered for download by ZeeZee.
Refusing to cease-and-desist out of court, in November 2014 the label filed for an injunction and damages at the Regional Court of Hamburg. During December 2016, the Court found in favor of the plaintiff and ZeeZee was ordered to stop its activities.
The case went to appeal but the outcome remained the same. In a ruling handed down by the Appeal Court of Hamburg earlier this month, ZeeZee was found to have acted illegally and to have no defense under Germany’s private copying exception.
The Court found that while users had requested the tracks, it was ZeeZee that fetched and reproduced them, later making them available for download. The infringing copies, therefore, had to be attributed to ZeeZee, not the end users of its service, in line with the limits on private copying highlighted in a 2017 ruling by the Court of Justice of the European Union.
The decision was welcomed by local music industry group, BVMI.
“Another clear signal from a German court: Anyone wishing to derive personal gain from another’s content by hiding behind the private copy rule must be prepared to be unmasked and suffer the legal consequences,” said René Houareau, Managing Director Legal & Political Affairs at the BVMI.
“A business model which does so is not in line with current laws. As the court states, ‘tapping’ internet radio stations in order to provide customers with an apparently free-of-charge copy from an unknown source, is specifically not covered by the private copying exception.”
On November 22, 2018, the Higher Regional Court of Munich reached the same conclusion in a case against stream-ripping service MusicMonster.fm, which also recorded tracks played on online radio stations to provide content to its customers.
The case, brought by Sony Music, also ended with a declaration that the service cannot rely on the private copying exception so is both unlicensed and illegal.
In Germany, exceptions for private copying attempt to balance the freedom to copy content with the right of rightsholders to get paid. While levies cover copies made at home for personal use, it’s now clear that sites like ZeeZee and MusicMonster need to obtain licenses to operate legally.