German copyright holders concerned about analog hole

Recently, I talked about the rule in Germany of 7 friends . Many then did not believe that it is really possible to completely 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, there are other interesting points in the German copyright law.

Apparently, readers had a lot of questions, so later a special addition was made to the article about an analog hole, which I also translated without changes.

So 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 more severely limited. Since then, media companies have been trumpeting the criminality of piracy. However, copying for personal use is still permitted. This article discusses what to look for.

Permitted Copies

§53 para. 1 of the German Copyright Act describes when it is permitted to copy works. We represent this statement in the following logical form:

If

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

then such copying is fundamentally allowed.

The German Supreme Court determined the upper limit for the number of copies - seven. Copies can be made only for your own personal use, for example, to play in the player in the 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 cannot profit from these copies. For example, your technically educated son cannot sell copied DVDs to his friends.

You must not distribute these copies, that is, to anyone and under no circumstances. For example, if your son decides to exchange copies of DVDs with classmates whom he does not know well enough, this is prohibited. Their use in file-sharing systems is also illegal.

You cannot play copies in a public place. A private birthday party with invited friends is not a public place. But if you will make music at a party at school or in the office - this is public.

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

Programs

Copies of the software are not exempted for personal use. Only backups are permitted, see §69c and §69d of the Copyright Act.

Copy Protection (§95a)

For the most part, CDs and DVDs have so-called copy protection, or as the law defines it, “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 warning of the protection must be clearly visible in accordance with §95d of the Copyright Act. Pay attention to this when buying.

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

However, copying CDs, DVDs, and other media that does not have copy protection is permitted. Creating backup copies of the original application software (§69d para. 2 of the Copyright Act) is also not limited to copy protection requirements, see §69a para. 5 of the Copyright Act.

Analog hole

In a decision of May 31, 2006, the Frankfurt District Court upheld the widespread belief that the operation of the “analog hole” was not a circumvention of copy protection. The so-called analogue 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 right software and hardware, 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 purposes, even bypassing copy protection, may not worry about criminal liability, see Copyright Act §108b art. 2b. Professional merchants, however, face up to 3 years in prison.

2008 changes

Starting January 1, 2008, downloading obviously illegal copies, or from obviously illegal sources, is a violation of copyright, which may result in civil liability. Until that time, only downloading on such services was punished.

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

Of course, such an option is possible that good friends are connected to a 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 network member can download your file, even an unknown person, this is no longer considered personal copying.

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

The reasonableness of the 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 price is usually easy to notice, unless it is a stock from a well-known and respected provider.

Copyright and YouTube

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

If the movie was publicly posted illegally, or is obviously an illegal copy, then downloading it is a violation of copyright. However, determining what was laid out legally and what is illegal is quite difficult, especially on YouTube. Major companies such as Sony Music, Warner Music and Universal Music have entered into agreements 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 of even a famous musician is laid out legally or illegally, with obvious exceptions, you 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 wonder: if they have a copy obtained as part 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. This is not explicitly 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 purposes is not tied exclusively to the original that you purchased yourself, as you can conclude from §53 para. 2 part 2, which specifically states that the original is required only to create your own archive.

The rightholders of course want to establish such restrictions by political methods, but so far they have not managed to push through this. Therefore, we believe that you can act with a legally obtained copy made for personal purposes, almost the same as the owner of the original: you can’t sell it, profit, you must follow all other conditions specified above for personal use, but make copies with you can for her and for friends.

Conclusion:

You can copy for personal use CDs and DVDs without copy protection. Using a so-called analog hole bypassing 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 copyright holder may demand damages, for example, in the amount of the normal market price for each illegally made copy (§97 of the Copyright Act). File hosting services and Internet users in general should study dubious offers for downloading music and films, since since 2008 responsibility has been introduced for this. Particularly active users of Internet file sharing have already been sued successfully.

Analog Hole Addition

As the district court correctly noted, recording 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 in an online store, such as Napster, i-tunes, etc., should carefully read the user agreement.

In the above Napster case, analog recording of audio files was a violation of the agreement. Reason: Napster supports a subscription model (music subscription fee), according to which a user, 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 recording of audio data allows the user to continue to use it even after the end of the subscription. This is a violation of the terms of the agreement. Consequently, the content provider could require such a user to recover damages.

People who bought a disc in a store and listen to it at home do not have such restrictions. Therefore, even if the CD is copy protected, analog 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: despite such a detailed memo, it seems to me that there are still many questions. However, German lawyers authoritatively argue that the courts do not have any problems determining who is your true friend and who is not, and what can be legally copied and what is not.