In 2017, Sony and Warner sued US-based radio service TuneIn, claiming the company infringed its copyrights in the UK. A judgment handed down today by the High Court states that while TuneIn does not offer content itself, the provision of hyperlinks to content not officially licensed in the UK constitutes a communication to the public and is therefore infringement.
TuneIn is one of the most prominent and recognizable providers of radio content in the world.
Available for free or on a premium basis, the service offers access to well over 100,000 radio stations and millions of podcasts. It doesn’t provide this content itself but acts as an indexer (“audio guide service”, according to TuneIn) for those looking to access third-party streams.
In 2017 it emerged that Sony Music UK and Warner Music UK had sued the US-based company in the UK, claiming that since many of the TuneIn-indexed stations are unlicensed to play music in the region, linking to them amounts to infringement of the labels’ copyrights.
Today, the High Court of England Wales handed down its decision and it doesn’t look good for TuneIn. The judgment begins by stating the opposing positions of the labels and TuneIn, which are particularly familiar in these types of disputes concerning hyperlinking.
“The claimants say that a finding for the defendant will fatally undermine copyright. The defendant says that a finding for the claimants will break the internet,” Justice Birss writes.
The labels argued that TuneIn needs a license, an assertion “strongly disputed” by TuneIn. The company argued that it does not “store any music, and merely provides users of TuneIn Radio with hyperlinks to works which have already been made freely available on the internet without any geographic or other restriction.”
In other words, TuneIn presents itself as not unlike Google search but instead of indexing websites, it indexes and links to radio streams. However, Justice Birss declared the service to be “much more than that”, in part due to its curation and search features.
“I find therefore that the activity of TuneIn does amount to an act of communication of the relevant works; and also that that act of communication is to a ‘public’, in the sense of being to an indeterminate and fairly large number of persons,” he writes.
The ruling, which was first published by a blog connected to Bird and Bird, the law firm that represented TuneIn, runs to 47 pages and is both extremely detailed and complex. However, the conclusion to Judge Birss’ judgment can be summarized in a straightforward manner.
When TuneIn supplied UK users with links to radio stations that are already licensed in the UK, the company did not infringe Sony or Warner’s copyrights.
However, when TuneIn supplied UK users with links to radio stations that are not licensed for the UK or are not licensed at all, the company did infringe the labels’ rights.
Noting that TuneIn cannot rely on the safe harbor defenses under the E-Commerce Directive, Judge Birss declared TuneIn, “liable for infringement by authorization and as a joint tortfeasor.”
The full judgment can be found here (pdf)