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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Warner Music UK Ltd & Ors v Tunein Inc [2019] EWHC 2923 (Ch) (01 November 2019) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2019/2923.html Cite as: [2020] ECDR 8, [2019] EWHC 2923 (Ch), [2019] RPC 28 |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
The Rolls Building 7 Rolls Buildings London, EC4A 1NL |
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B e f o r e :
____________________
(1) Warner Music UK Ltd (2) Sony Music Entertainment UK Ltd (for themselves and as representative Claimants on behalf of the members of their respective corporate groups) |
Claimants |
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- and - |
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TuneIn Inc. |
Defendant |
____________________
Robert Howe QC and Jaani Riordan (instructed by Bird & Bird) for the Defendant
Hearing dates: 26th and 27th September 2019
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Crown Copyright ©
Mr Justice Birss :
Topic Paragraphs Introduction 1 Targeting 12 Communication to the public – the law 35 The sample stations 112 Communication to the public - assessment 120 The TuneIn service 120 Category 3 132 Category 2 143 Category 4 161 Category 1 164 The recording function in the TuneIn Radio Pro app 172 Liability of users making recordings with the TuneIn Radio Pro app 179 Liability of the providers of Categories 2, 3 and 4 stations 192 Authorisation or joint tortfeasance 196 Safe harbours 205 Other issues 211 Conclusion 212
Introduction
Targeting
Targeting - the law
i) The mere existence of a website and its accessibility by local consumers is never enough to establish a territorial link, see Kitchin LJ in Merck v Merck [2017] EWCA 1834 para 168 and L'Oreal v eBay para 64.
ii) The issue of targeting is to be considered from the perspective of the public in the relevant state (i.e. the UK), see Merck v Merck para 169 and L'Oreal v eBay para 65. The trade mark cases refer to consumers or average consumers because that is the relevant person in trade mark law. For cases about communication to the public, the question focusses on the public, see EMI v BskyB and my decision in OmniBill v EGPSXXX [2014] EWHC 3762 (IPEC).
iii) The test is objective in the sense that a party's subjective intention cannot turn a website or page which is objectively not targeted at the UK into one which is (Argos v Argos [2018] EWCA Civ 2211 para 51). However that does not mean evidence of intention is irrelevant. On the contrary such evidence is relevant and possibly determinative in an appropriate case (Merck v Merck paras 169-170 and Argos v Argos para 51).
iv) The court must carry out an evaluation of all the relevant circumstances, see Merck v Merck para 169 and L'Oreal v eBay para 65.
v) It may be appropriate to treat a website as a whole, but in another case it may be appropriate to conduct a more fine grained analysis. Depending on how a website is organised, not all pages are necessarily targeted at the same place(s), see Argos v Argos para 51 and OmniBill para 15.
i) The appearance of the web pages themselves, which can include explicit statements of an intention to provide goods or services to the public in the UK and the highlighting of the UK in lists or maps.
ii) Other aspects of the web pages such as language(s), currency(ies), telephone numbers, and the use of national top level domain names.
iii) The nature and size of the service provider's business, the characteristics of the goods or services offered and provided, and the number of visits made by the public from the UK.
Targeting – the facts
Targeting – a reflection
Communication to the public – the law
"(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing:
(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;
(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one;
(iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work."
"Rights of communication to the public
Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them."
"It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention . …"
"Right of Making Available of Phonograms
Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them."
i) The Commission Green Paper cites the WIPO Glossary definition of 'communication to the public', and emphasises the need for the information society to 'operate smoothly and without obstacle'.
ii) The European Parliament Resolution on the Green Paper explains that the communication right should be 'applicable to all interactive digital transmissions'.
iii) The ESC Opinion at [1.3.4] notes a requirement 'to balance the need to protect intellectual property rights against the rights of users and of the public at large' and describes Article 3(1) as 'a very carefully drafted definition' of the communication right which should 'stand the test of changing technology'.
Article 3 of the Directive and section 20 of the 1988 Act
"Right of communication to the public of works and right of making available to the public other subject-matter
1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:
(a) for performers, of fixations of their performances;
(b) for phonogram producers, of their phonograms;
(c) for the producers of the first fixations of films, of the original and copies of their films;
(d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.
3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article."
"(1) The communication to the public of the work is an act restricted by the copyright in–
(a) a literary, dramatic, musical or artistic work,
(b) a sound recording or film, or
(c) a broadcast.
(2) References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include–
(a) the broadcasting of the work;
(b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them."
The case-law of the CJEU
"12. The principles established by the CJEU case law can, I think, be summarised as follows:
(1) "Communication to the public" must be interpreted broadly: SGAE [2007] ECDR 2 at [36], [54], FAPL [2013] ECDR 14 at [186], ITV [2013] E.C.D.R. 9 at [20].
(2) "Communication to the public" covers any transmission or retransmission of the work to the public not present at the place where the communication originates by wire or wireless means: ITV at [23].
(3) "Communication to the public" does not include any communication of a work which is carried out directly in a place open to the public by means of public performance or direct presentation of the work: Circul (C-283/10) at [36]–[41], FAPL at [200]–[203].
(4) There is no "communication to the public" where the viewers have no access to an essential element which characterises the work: Bezpecností [2011] ECDR 3 at [57].
(5) "Communication" includes any retransmission of the work by a specific technical means different from that of the original communication: ITV at [24]–[26].
(6) A mere technical means to ensure or improve reception of the original transmission in its catchment area does not constitute a "communication": SGAE at [42], FAPL at [194], Airfield [2012] E.C.D.R. 3 at [74], ITV at [28].
(7) There is an act of "communication" when someone gives members of the public access to the work in circumstances where they would not be able to enjoy the work without that intervention: SGAE at [42], FAPL at [194]–[196], Airfield at [72], SCF [2012] E.C.D.R. 16 at [82], PPIL [2012] E.C.D.R. 15 at [31].
(8) It is sufficient for there to be "communication" that the work is made available to the public in such a way that the persons forming that public may access it whether or not those persons actually access the work: SGAE at [43].
(9) Mere provision of physical facilities does not as such amount to "communication": SGAE at [46].
(10) Nevertheless, the installation of physical facilities which distribute a signal and thus make public access to works technically possible constitutes "communication": SGAE at [46]–[47], Organismos (C-136/09) at [39]–[41].
(11) "The public" refers to an indeterminate number of potential recipients and implies a fairly large number of persons: SGAE at [37]–[38], SCF at [84], PPIL at [33], ITV at [32].
(12) For that purpose, the cumulative effect of making the works available to potential recipients should be taken into account, and it is particularly relevant to ascertain the number of persons who have access to the same work at the same time and successively: SGAE at [39], SCF at [87], PPIL at [35], ITV at [33].
(13) In considering whether there is a communication to "the public", it is not irrelevant that the communication is of a profit-making nature: SGAE at [44], FAPL at [204]–[206], Airfield at [80], SCF at [88]–[90], PPIL at [36].
(14) There is no communication to "the public" where sound recordings are broadcast by way of background music to patients of a private dental practice: SCF at [92]–[102].
(15) Where there is a communication which does not use a different technical means to that of the original communication, it is necessary to show that the communication is to a new public, that is to say, a public which was not considered by the authors concerned when they authorised the original communication: SGAE at [40], Organismos at [38], FAPL at [197], Airfield at [72], [76], ITV at [38].
(16) There is a communication to a new public where television broadcasts are transmitted to an additional public (that is to say, additional to the public constituted by owners of television sets who receive broadcasts within their own private and family circle) such as customers of hotels and public houses: SGAE at [41], Organismos at [37], FAPL at [198]–[199].
(17) There is also a communication to a new public where a satellite package provider expands the circle of persons having access to the relevant works: Airfield at [77]–[82].
(18) Where there is a communication using a different technical means to that of the original communication, it is not necessary to consider whether the communication is to a new public: ITV at [39]."
"(1) If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of article 3(1) of Directive [2001/29]?
(2) Is the assessment under question (1) affected if the work to which the link refers is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way?
(3) When making the assessment under question (1), should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?"
"26. The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them.
27. In those circumstances, it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.
28.Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings."
"in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a 'communication to the public' within the meaning of that provision,
it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website
or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed"
[organisation of the paragraphs added]
"Indeed, as soon as and as long as [a] work is freely available on the website to which the hyperlink allows access, it must be considered that, where the copyright holders of that work have consented to such a communication, they have included all internet users as the public."
"43. Accordingly, it cannot be inferred either from [Svensson or Bestwater] that posting, on a website, hyperlinks to protected works which have been made freely available on another website, but without the consent of the copyright holders of those works, would be excluded, as a matter of principle, from the concept of 'communication to the public' within the meaning of Article 3(1) of Directive 2001/29. Rather, those decisions confirm the importance of such consent under that provision, as the latter specifically provides that every act of communication of a work to the public is to be authorised by the copyright holder."
"48. Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13 February 2014, Svensson and Others, C-466/12, EU:C:2014:76, paragraphs 18 to 23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention."
"51. Furthermore, when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a 'communication to the public' within the meaning of Article 3(1) of Directive 2001/29."
"36. Thus, in a case in which it was questioned about the concept of a 'new public', the Court held that, in a situation in which an author had given prior, explicit and unreserved authorisation to the publication of his articles on the website of a newspaper publisher, without making use of technological measures restricting access to those works from other websites, that author could be regarded, in essence, as having authorised the communication of those works to the general internet public (see, to that effect, judgment of 13 February 2014, Svensson and Others, C-466/12, EU:C:2014:76, paragraphs 25 to 28 and 31)."
"35. Taking account of those elements, it must be held, in the light of the case-law set out in paragraph 24 of the present judgment [i.e. Svensson, GS Media and Ziggo], that the posting of a work protected by copyright on one website other than that on which the initial communication was made with the consent of the copyright holder, in circumstances such as those at issue in the main proceedings, must be treated as making such a work available to a new public. In such circumstances, the public taken into account by the copyright holder when he consented to the communication of his work on the website on which it was originally published is composed solely of users of that site and not of users of the website on which the work was subsequently published without the consent of the rightholder, or other internet users.
36. It is irrelevant to the objective considerations set out in paragraphs 29 to 35 of the present judgment that, as in the case in the main proceedings, the copyright holder did not limit the ways in which internet users could use the photograph. The Court has already held that the enjoyment and the exercise of the right provided for in Article 3(1) of Directive 2001/29 may not be subject to any formality (see, to that effect, judgment of 16 November 2016, Soulier and Doke, C-301/15, EU:C:2016:878, paragraph 50)."
i) the owner took (or should be treated as having taken) into account all internet users as potential recipients of a hyperlink to that work; but
ii) did not take (and need not necessarily have taken) into account any internet users, other than those to whom the site is targeted, as potential recipients of a posting of the work itself.
i) Although the individual dimensions of the question need to be considered, ultimately the assessment of whether a party's actions amount to a "communication to the public" is an individualised and case specific assessment which must be carried out as a whole.
ii) Providing a link to a work is capable of being an act of communication to the public, even if no one actually selects the link or goes to look at or listen to the work, because a link to a work makes a work available. In other words merely providing a link to a work available at another location on the internet can itself be an act of communication (Svensson, GS Media).
iii) An important distinction is between a case in which a work has been placed on the internet with the consent of the relevant rights holder and a case in which there has been no such consent. If the initial posting of the work was done with the relevant consent then it is itself an act of communication to the public and any subsequent alleged acts of communication to the public have to be analysed with that in mind. For a second act of communication to the public on the internet to be an infringement in that case, there must be a new public (or new technical means) and for the former to be determined one must work out what public was taken into account when the first act of communication took place.
iv) However the question of what public was taken into account when a work was the subject of a first communication to the public cannot be answered without knowing the nature of the subsequent act of communication which is alleged to infringe (Svensson and Renckhoff). One does not simply ask – what public was taken into account? – rather one has to ask – were the public to whom the act of communication complained of is addressed taken into account in giving the consent to the first act of communication?
v) Approached that way, in a case in which a photograph is taken from one website and reposted on a second website, one asks: were visitors to the second website who will encounter the photograph posted on that website taken into account when the consent to the posting of the photograph on the first website was given? The answer may well be no because the rights holder should only be taken to have consented to the work appearing on the first website and being seen posted on that first site by visitors to that first site, and not be taken to have consented to the work being seen posted on a second website by visitors to that second website, who amount to a different class of visitors (Renckhoff).
vi) By the same token, in a case in which there is, on one website (A), a link to a photograph posted on another website (B), one asks: were visitors to website A who will encounter that link taken into account when the consent to the posting on the photograph on website B was given? The answer may well be yes because the rights holder should be taken to have understood that the internet includes that sort of linking and therefore to have consented to those links appearing on other websites and being seen by anyone on the internet (Svensson).
vii) Turning to cases in which the work was posted initially without the consent of any relevant rights holder, if that is what happened then it was not a relevant act of communication to the public at all. That means that any subsequent act of communication of that work risks being an act of communication to the public. Therefore re-posting the work on another site would be an infringement. However if all that a defendant has done is put up a link to the first posting of the kind in GS Media, then that act of communication is only an infringement if the person posting such a link knew or ought to have known that the original posting was without any consent. This follows from striking a balance between the rights of the copyright owner and the freedoms of expression and information.
viii) In a case in which the initial communication was without consent and the knowledge of the person posting the link is material, persons acting for financial gain will be presumed to have the requisite knowledge but can call evidence to rebut that presumption, while for persons acting not for financial gain the presumption is reversed and they will be presumed not to have the requisite knowledge unless the contrary is proved (GS Media). Either way, once the person posting the link is actually aware that the work was posted without the consent of the rights holder, they will commit an act of communication if they do not take down the link.
The sample stations
i) music radio stations which are licensed in the UK (Category 1);
ii) music radio stations which are not licensed in the UK or elsewhere (Category 2);
iii) music radio stations which are licensed for a territory other than the UK (Category 3); and
iv) Premium music radio stations (Category 4).
Communication to the public - assessment
The TuneIn service
i) Aggregation: TuneIn collates and provides access to a vast array of international radio station streams. It essentially acts as a 'one-stop shop' for users, who are easily able to browse, search for and listen to stations in one place. The alternative for users is to use a standard internet search engine to locate a webcast / simulcast station by using tailored search terms, and then click-through to their websites to listen to the specific stream. One aspect of the difference there is that in the latter case the advertising targeted to the user once they access the stream will be entirely distinct in the two cases.
ii) Categorisation: TuneIn Radio enables users to browse by categories of music, such as location, genre and language, including sub-categories within those categories. This is the most commonly used method for users to find audio content. Music stations are placed in categories based on information provided by the stations and factors such as geographical location.
iii) Curation of station lists: In addition to categorising stations, TuneIn curates lists of radio stations and programmes to present them to users as part of the browsing experience on its website and via the apps. These stations are collated by factors such as location and language or themed around current events. For example, TuneIn promotes lists of stations to users, such as "Spin the Globe" (comprising international music stations) and "Editor's Choice – Music" (a hand-curated list of music stations). Certain stations are also listed in a "Featured" section, which is frequently updated by TuneIn to keep content relevant and non-repetitive.
iv) Personalisation of content: TuneIn Radio provides a personalised service to users, which facilitates their ability to find and listen to radio stations. TuneIn recommends stations to users based on their location, the reliability of audio streams and (in respect of registered users) the user's listening history. Registered users are also able to view their listening history and tag their 'favourite' stations and/or artists, which enables them to quickly access radio stations they have previously listened to via TuneIn Radio or their favourite stations and artists.
v) Search functionality: Users are able to search TuneIn Radio for specific radio stations and artists by name. The search functionality prioritises inter alia reliable station streams and stations which are popular at that time.
vi) Station information: TuneIn collates information about music stations, which is presented on individual station pages. This includes the genre of the station and, where available, the artist and track currently playing, the station's show timetable and related podcasts or featured shows.
vii) Artist information: TuneIn also collates information about artists on dedicated artist pages, which can be accessed by searching for the particular artist. The artist pages include a list of stations which play the particular artist (based on metadata provided by the stations) and a list of the artist's albums. Users are also able to click-through to each album page, which displays the individual tracks on each album.
i) The fact that TuneIn aggregates links to audio streams as opposed to links to some other form(s) of content is relevant. The audio streams carry music and as a result they engage various intellectual property rights, as TuneIn is well aware.
ii) The data collected and curated by TuneIn allows for searches of stations to be carried out by artist. Such a search returns internet radio stations which are playing music by the artist at that moment. As I understand it this is only possible as a result of TuneIn's own monitoring stream metadata and the AIR APIs. There was evidence about what a search for internet radio stations would produce on the commonly used Google search engine but, as far as I am aware, there is no evidence that a similar search on that search engine would produce results of the same kind as TuneIn.
iii) The fact that when a station is selected, although a hyperlink to the stream is provided at a technical level, from the user's point of view content is provided to them at the TuneIn site. In effect this is a kind of framing. The fact that framing was not relevant to answer the questions posed in Svensson (para 29) does not mean it is irrelevant to considering the nature of TuneIn's activity.
iv) The persistent nature of the content to which the user wishes to link. This is connected to (iii) but is a different point. One of the consequences of providing streams is that they persist over time as the user listens to them. In a conventional search engine, once a user has clicked on a link, they go to the new website and the involvement of the search engine is over. That is not how TuneIn's service works and if it was then TuneIn would not be able to provide its own visual advertisements while the user was listening.
Category 3
Category 2
Category 4
Category 1
"However:…
(a) this shall not prevent Internet Simulcast Services from being accessed via a third party website by means of a hyperlink (or "click through") to a Licensed Website; and …
(b) this shall not oblige the Licensee to prevent Internet Simulcast Services from being accessed via a third party website by means of so-called "deep linking" (i.e., where an Internet Simulcast Service is accessed from its server without recourse to a Licensed Website)".
The recording function in the TuneIn Radio Pro app
Liability of individual users making recordings using the Pro app
"(1) The making in domestic premises for private and domestic use of a recording of a broadcast solely for the purpose of enabling it to be viewed or listened to at a more convenient time does not infringe any copyright in the broadcast or in any work included in it."
"2. Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:
…
(b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject matter concerned;
…"
"5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder."
i) A recording of a broadcast must be made;
ii) The recording must be made on domestic premises;
iii) The recording must be for private and domestic use; and
iv) The purpose of the recording must be to enable it to be viewed or listened to at a more convenient time.
Liability of the providers of Category 2, 3 and 4 stations
Authorisation or joint tortfeasance
"(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.
(3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it—
(a) in relation to the work as a whole or any substantial part of it, and
(b) either directly or indirectly;
and it is immaterial whether any intervening acts themselves infringe copyright."
"…The grant or purported grant to do the relevant act may be express or implied from all the relevant circumstances. In a case which involves an allegation of authorisation by supply, these circumstances may include the nature of the relationship between the alleged authoriser and the primary infringer, whether the equipment or other material supplied constitutes the means used to infringe, whether it is inevitable it will be used to infringe, the degree of control which the supplier retains and whether he has taken any steps to prevent infringement. These are matters to be taken into account and may or may not be determinative depending upon all the other circumstances".
i) Control – TuneIn has no control over the content included in the streams provided by Category 2 and 3 stations. TuneIn suggested it has no control for Category 4 but I do not accept that.
ii) Steps to prevent infringement – TuneIn contends that it goes out of its way to work with copyright owners and licensing bodies to avoid infringement by station operators and that it acts promptly to remove any operators reported to be unlicensed, and adopts and enforces a 'three strikes' policy against all operators. I do not accept this. TuneIn makes no effort to work with UK copyright owners or licensing bodies nor does it make any effort at all to avoid infringement of UK copyright by Category 3 or 4 stations. The three strikes policy has no relevance to Categories 3 or 4.
iii) Nature of relationship – TuneIn submitted that its relationship with an internet radio station is one of an information location service, in other words, a search engine. I reject that for all the reasons discussed above. Its position in the relationship with a given internet radio station is not that of a facilitator, it directly intervenes to provide the streams to users in the UK. As for the contracts, they are either bespoke or are on TuneIn's standard terms and so under its control.
iv) Means of infringement – the streams are supplied by the internet radio station but they are targeted to users in the UK by TuneIn. It is true that the streams would exist without TuneIn but from a user's point of view, TuneIn's intervention is an indispensable part of the way they experience the stream.
v) Non-infringing uses – it is true that a large share of the internet radio stations provided by TuneIn do not involve infringement of the claimants' rights. If that meant that the infringing activity was a minor part of TuneIn's offering, then this might carry more weight. But it is not.
vi) Knowledge of infringing stations – TuneIn suggested it was not indifferent to infringement. I would accept that insofar as the case was limited to Category 2 but it does not apply to Categories 3 and 4. TuneIn knows all it needs to know about those kinds of stations.
Safe harbours
Other issues
Conclusion
i) TuneIn's service (web based or via the apps), insofar as it includes or included the sample stations in Categories 2, 3, and 4, infringes the claimants' copyright under s20 of the 1988 Act.
ii) TuneIn's service (web based or via the apps), insofar as it includes the sample stations in Category 1, does not infringe the claimants' copyright under s20 of the 1988 Act.
iii) TuneIn's service via the Pro app when the recording function was enabled infringed the claimants' copyright under s20 of the 1988 Act insofar as it included the sample stations in Categories 1, 2, 3, and 4.
iv) Individual users of the Pro app who made recordings of sound recordings in claimants' repertoire will themselves have committed an act of infringement under s17 of the 1988 Act. Some but not all will have fallen within the defence in s70.
v) The providers of sample stations in Categories 2, 3, and 4 will (or did) infringe when their station was targeted at the UK by TuneIn.
vi) TuneIn is liable for infringement by authorisation and as a joint tortfeasor.
vii) TuneIn cannot rely on the safe harbour defences under Arts 12, 13 and 14 of the E-Commerce Directive.