For all those not familiar with German copyright law, the codified German equivalent of the US principle of “fair use” of copyrighted material is §53 UrhG. In general the clause states that copies (in this case of songs) for personal use are legal. Standing jurisdiction upholds the right of everyone to give away 7 copies of, say, a CD (no idea how they arrived at that number – maybe that was a statistic average number people involved in close knit interaction at the time the law was challenged in court decades ago).

That is absolutely legal in Germany, as long as you don’t take money from your friends. The soon to be implemented European directive on digital age copyright makes things a lot more complicated, but at least tries to keep that fundamental right in the legislation – personal non profit copies will generally remain legal (then Europewide).

No one has ever disputed that offering ripped mp3 files through a file sharing service is an infringement of copyrights. The person offering has no license to do so and the anonymity and amount of downloads of p2p services basically does not favour arguments based on the “copy to friends”-provision.

But downloading is a bit trickier. Lawyers were arguing back and forth to come a conclusion wether it would matter for a download to be covered by the protection of §53 UrhG if the copy obtained by the person downloading has been legally licensed for distribution or if the person downloading would have acted in bad faith on the presumption that was not. The record industry’s position was always that a legally licensed original was necessary for the private copy privilege. That is – until last thursday, I suppose. I was so shocked by the statement that I almost forgot to mention it:

The President of BMG Europe, Thomas M. Stein, was a guest at Johannes B. Kerner’s daily talkshow because he’s a member of the Jury of the currently broadcast German version of “American Idol”. And after admitting that he could have never become a “German Idol” due to his bad voice he simply let it slip out like the most natural thing in the world. Downloading mp3s is legal in Germany, according to Thomas Stein, CEO of BMG Europe.

Now I don’t know if that is a consequence of a court ruling or of a revised industry policy in light of the soon to be implemented EU directive or legally correct (to make that necessary disclaimer). But it certainly is a bold statement for a record company executive.

This is a video file of Mr Stein’s appearance on the show. You will find the statement I am talking at about 12′ 08” – the host asks – “downloading mp3 files is illegal?” to which Mr. Stein replies “not if you do it only for private purposes…”. Those of you speaking German, please check, as I still don’t believe what I heard.