Counterpoint: Landesgericht Hamburg Injunction against SoniXCast

NEW YORK - May 16, 2015 - PRLog -- Early in 2013 SoniXCast marketing was very aggressive in getting out the message about their newly acquired SOCAN license. Maybe too aggressive. Direct comparisons were made between SOCAN’s Tariff-22 and the tariffs of other German performance rights organizations which is a frowned upon marketing practice in Germany and caused loads of attention.

In January 2013, the Gesellschaft zur Verwertung von Leistungsschutzrechten (http://de.wikipedia.org/wiki/Gesellschaft_zur_Verwertung_von_Leistungsschutzrechten) (Gvl) petitioned the Landesgericht Hamburg for an injunction against SoniXCast marketing methods citing that the impression was presented to consumers that Internet-radio stations broadcasting from Germany could use the license to bypass German performance rights organizations like Gema and Gvl. On the 10th of January 2013 a Hamburger judge agreed and granted the injunction.
Scope of the Injunction
Unlike a judgement, an injunction is simply a statement made by the court saying that any future infractions can result in a judgement against the defendant. In essence the court was telling SoniXCast to be clear about the scope of their license and how it does not apply to radios broadcasting from Germany or else they could be fined.

The decision was made “in absentia” which means SoniXCast was not present at the preceding. The court was therefore required by law to notify the defendant by registered mail within 30 days in order to make the injunction decreeable. It is the responsibility of the plaintiff (Gvl in this case) to supply an address to the court. The address supplied was incorrect, the registered mail never delivered and after 30 days the decision was automatically rendered null and void.

In Summary, the injunction is worth about as much as the paper it’s printed on and never had anything to do with the legal status of the SoniXCast license. Even if the same infraction occurred again, the plaintiff would be required to start all over and petition a new one.

On the other hand, Gema and Gvl gained a powerful marketing tool which they use to fool consumers into believing that SoniXCast is not legal in Germany. Nothing could be further from the truth:

SoniXCast radios broadcast from Canada and operate under Canadian law
The Umbrella License with SOCAN ensures all licensing fees are duly processed and distributed (Gema earned roughly $80,000 from SoniXCast radios in 2013)
Gema (and Gvl by extension) has signed agreements with SOCAN making it possible for SoniXCast radios to broadcast songs out of their catalog
SoniXCast uses technology to filter what is broadcasted. A song that is not in the SOCAN (and by extension Gema and Gvl) catalog will be muted to the public making SoniXCast solely responsible for program management

But I’ve heard that SoniXCast radios have been taken to court and forced to pay!
Individual’s associated with SoniXCast radios have had to pay damages for violating German copyright law, but the same is true for radio stations residing in Germany. Gema began cracking down on pirate radios in 2010 and closed many German radio stations who then went to SoniXCast. The moderators of many small radios showed little respect for the law and continued the practices which got them into trouble in Germany. Gema justifiably took them to court and in some cases won. Gema agents like to insinuate that SoniXCast radios have been sued and are therefore acting illegal, however, that is simply not true. Many small radios have only one moderator and if that person gets caught, they shirk the responsibility onto the provider. The same happens to German hosting providers.

For Gema to sue a SoniXCast radio, they would have to file in a Canadian court and prove that international trade laws were violated. Financially no more expensive than doing the same in Germany, however the reason Gema has never done so is because there have been no violations. Gema could conceivably pressure SOCAN into revoking SoniXCast’s license, but they haven’t done that either. The fact of the matter is that Gema has already conceded publicly that the SoniXCast license model is legal even in Germany and that there is no viable reason to sue, so they go after the individuals instead.