German copyright holders worried about analog hole

I recently talked about the rule of 7 friends in Germany. Many then did not believe that it is really possible to completely legally copy movies or music, and distribute copies to seven friends, and then they can copy them to their friends.

Therefore, I translated an article - a memo for respectable Germans, made by one law firm, which examines in detail what can and cannot be done. It turned out that in addition to 7 friends in German copyright law there are other interesting points.
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Apparently the readers had a lot of questions, so later a special addition was made to the article about the analog hole, which I also translated without changes.

So, the translation:

As a rule, the author decides what can be done with his work. In Germany, there is traditionally an exception to this rule - copying for personal use. After copyright reforms in 2003 and 2008, such copying was limited more strictly. Since then, media companies everywhere trumpet about the criminal nature of piracy. However, copying for personal use is still permitted. This article discusses what to look for.

Permitted copies

§53, paragraph 1 of the German Copyright Act describes when copying works is permitted. Imagine this statement in the following logical form:

If a

• private person
• makes separate copies
• from someone's work
• for personal use without profit
• and will not distribute or publish them
• and (since 2008) the used original is not obviously illegal and has not been obtained from an obviously illegal source.

then such copying is fundamentally permitted.

The Supreme Court of Germany has determined the upper limit of the number of copies - seven. Copies can be made only for your own personal use, for example, to play in a player in a car, or as a gift to people with whom you have a close personal relationship, such as relatives or friends. Use for professional needs is not allowed. You may not profit from these copies. For example, your technically educated son cannot sell copied DVDs to his friends.

You can not distribute these copies, that is, to anyone and under any circumstances. For example, if your son decides to exchange DVD copies with classmates he does not know well enough, this is prohibited. Their use in file-sharing systems is also illegal.

Cannot reproduce copies in a public place. A private birthday party with invited friends is not a public place. But if you make music at a party at school or in the office, it’s in public.

The original is obviously illegal if it is, for example, a “real” DVD with a new film for 1 euro, or a CD with songs downloaded from a file sharing service. Since 2008, many file-sharing services have fallen under this restriction: if the music or movie is downloaded from a file sharing service or from a peer-to-peer network, the original is considered published “obviously illegal” and it cannot be used for authorized copying for personal purposes.

Programs

Copies of the software are not exclusive to personal use. It is only allowed to make backup copies, see §69c and §69d of the Copyright Act.

Copy Protection (§95a)

For the most part, CDs and DVDs have what is called copy protection, or as defined by law, “effective technological measures.” Disc manufacturers use it so that no one can copy or use their products without permission. Bypassing such protection, for example, using special software, is illegal. The security warning must be clearly visible, according to §95d of the Copyright Act. Pay attention to this when buying.

Music, legally available via the Internet, is usually also protected. The manufacturer restricts the buyer, allowing to make only a certain number of copies of files, or play them only on certain equipment.

However, copying CDs, DVDs, and other media that are not copy protected is allowed. The creation of backup copies of the original application software (§69d of paragraph 2 of the Copyright Act) is also not limited to copy protection requirements, see §69a of paragraph 5 of the Copyright Act.

Analog hole

In its decision of May 31, 2006, the Frankfurt District Court affirmed the widely held view that the operation of the “analog hole” is not a circumvention of the copy protection. The so-called analog hole in copy protection arises from the fact that digital data must be converted to analog signals for playback in speakers or headphones. With the help of suitable software and equipment, these signals can be recorded and reused as music. You can read more about this issue in the appendix at the end of this article.

Criminal liability

Those who copy for personal use, even bypassing copy protection, may not be concerned about criminal liability, see the Copyright Act §108b art. 2b. Professional merchants, however, face up to 3 years in prison.

Changes 2008

From January 1, 2008, downloading of obviously illegal copies, or from obviously illegal sources, is a violation of copyright, which may entail civil liability. Until that time, only pumping for such services was punished.

In other words: those who continue to simply download music and movies from file-sharing networks now also violate copyright if it is obvious that this file cannot be legal, for example, if it is new movies or music.

Of course, it is possible that good friends connect to the file-sharing network in order to exchange legally created personal copies. But even if their intentions were such, users are usually forced to provide files on their computer to all participants, so if any member of the network can download your file, even an unknown person, this is no longer considered copying for personal use.

If you downloaded a movie or music not from a file-sharing network, not from a clearly illegal source, for example from a reputable content provider, and paid a reasonable price for it, then in this case neither downloading nor creating copies for personal purposes is prohibited.

The reasonableness of price is determined naturally by the market. This can be determined when downloading, for example, if the price is suspiciously different from the market. A price of half or a quarter of the market is usually easy to see, unless it is a stock from a well-known and reputable provider.

Copyright and YouTube

YouTube is not the only, but now the most popular video hosting. Data from it is usually transmitted as a stream, so no copies remain on the user's computer. However, there are technical possibilities to save such a stream file.

If the film was shared illegally, or is obviously an illegal copy, then downloading it is a violation of copyright. However, it is rather difficult to determine what was posted legally and illegally, especially on YouTube. Major companies such as Sony Music, Warner Music and Universal Music have made deals with YouTube and provide their content there. Downloading such a video is not prohibited.

Since it is difficult to determine whether a particular video clip even of a famous musician is laid out legally or illegally, then, with obvious exceptions, we can expect that YouTube users will not be prosecuted for downloading such files. For other services, however, they will have to think about it and possibly make inquiries.

Copy from copy

Many people ask: if they have a copy obtained within the framework of copying for personal purposes, can they then make more copies for themselves and / or distribute them to their friends. That is, is it possible to make personal copies from a personal copy. Explicitly, this is not indicated, but judging by the Copyright Act, we can assume: if we are talking about a legally acquired or received copy, then yes. The right to copy for personal use is not tied exclusively to the original, which you purchased yourself, as can be concluded from §53 para.2 part 2, which specifically states that the original is required only to create your own archive.

The right holders of course want to establish such restrictions by political methods, but so far they have not been able to push this through. Therefore, we believe that you can do with a legally obtained copy made for personal purposes, almost the same as the owner of the original: you cannot sell it, benefit, you must comply with all other conditions mentioned above for personal use, but make copies with her for yourself and for friends you can.

Conclusion:

You can copy for personal use CD and DVD without copy protection. The use of the so-called analog hole bypass copy protection is not considered. Bypassing copy protection does not entail criminal liability if copies are made for personal use. But regardless of the objectives, in any case of illegal circumvention of copy protection, the right holder may claim damages, for example, in the amount of the normal market price for each illegally made copy (§97 of the Copyright Act). File sharing and Internet users in general should study dubious suggestions for downloading music and movies, since since 2008 responsibility has been introduced for this. Especially active users of online file sharing have already been successfully prosecuted.

Supplement on analog hole

As the district court correctly noted, the recording of analog signals is not a violation of copy protection, unlike digital copying. However, the court also pointed out an important practical limitation:

Anyone who has downloaded music from an online store, such as Napster, i-tunes, etc., should carefully read the user agreement.

In the above Napster case, the analog audio recording was a violation of the agreement. Reason: Napster supports a subscription model (music subscription fee), according to which the user, by paying a certain amount per month, gets access to all music files. When the subscription ends, the user can no longer use the audio files. The implementation of this agreement is implemented using DRM protection in files.

But analog audio recording allows the user to continue using them even after the subscription ends. This is a violation of the terms of the agreement. Consequently, the content provider could require such a user to pay damages.

People who bought the disc in the store and listen to it at home do not have such restrictions. Consequently, even if the CD is copy-protected, analogue dubbing from it is not a violation of §95a of the Copyright Act.

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In conclusion, a few words from the translator: in spite of such a detailed memo, it seems to me there are still a lot of questions. However, German lawyers authoritatively argue that the courts do not have any problems with determining who your true friend is and who is not, and that you can legally copy and what is not.