German Court says privacy more important than ‘petty’ file swapping crimes

September 2007

Record labels

The fine balance between individuals right to privacy and copyright owner’s right to protect their intellectual property against theft and infringement swung back in favour of privacy with a ruling by a Local Court in Offenburg Germany which held that public prosecutors were prohibited from requesting ISPs (internet service providers) provide details of an IP address to allow prosecutors to determine of identities of users of a P2P network. On the grounds of “obvious disproportionateness” the court declared that the ISP should protect privacy and pointed to the fact that offering a few copyright-protected music tracks via a P2P network client was “a petty offence” (we are not sure that record labels would agree!). This seems to be a trend in Germany as the public prosecutor’s office in Celle had already refused to determine individuals associated with an IP addresses submitted by a law firm representing copyright owners, a process that would have involved forcing the providers to reveal the relevant personal data, The supervising authority dismissed the complaint as baseless and said that the case did not fulfil the “indispensable condition of an investigation being in the public interest” because the offences committed by the alleged users of the file-sharing network had not “disturbed law and order beyond the sphere of life of the client”. In addition the offences were “minor.” And there was no evidence that substantial damage had been done. The chief public prosecutor’s office goes on to say that “some parties may regret the fact” that the legislator has not given holders of copyrights a civil law right to obtain the type of information in question from providers. Such parties “could not however expect such omissions on the part of the legislator to be offset in other areas and in every minor case by the endeavours of the prosecuting authorities with their limited resources.” Another case in Berlin was even more explicit. When a law firm submitted a claim based on 9,186 IP addresses to the public prosecutors office, asking for them to be investigated, the office denied a request for information to be obtained from the provider. The law firm then complained in writing to the chief public prosecutor’s office in Berlin and to the Minister of Justice of the German federal state of Berlin. In its reply the chief public prosecutor’s office accused the copyright holders of trying “under cover of pretending to want to initiate criminal proceedings to obtain for free and by exploiting the limited resources of the prosecuting authorities and at the expense of the budget of the federal state of Berlin the personal data required for the successful pursuit of civil claims.” The chief public prosecutor’s office in Berlin also denied that launching an investigation was in the public interest. The Chief Prosecutor commented that all the offences that had been brought to its attention were minor and that the damage done by the P2P networks was contrary to the statements found in the complaint, “insignificant” and hence the criterion of “minimal culpability” of necessity, had to result in a nolle prosequi being issued without any prior investigation. In addition the “deciphering of IP addresses” and search warrants were intrusions on basic rights, to which the principle of proportionality had to be applied. This principle required that no investigation be launched in response to the complaints filed, the office declared. Here too the chief public prosecutor’s office points to the copyright holders’ likely motivation in filing the complaints: “Criminal-law-based investigations that entail intrusions on basic rights must not be launched for extraneous reasons – such as nothing more than a desire to obtain evidence for a civil suit.” This mirrors a recent Spanish decision in Productores de Música de España v Telefónica de España SAU which held that telecoms data was not available to copyright owners in civil actions. However in another recent case in Belgium, SCRL Societe Belge Des Auteurs v SA Scarlet the ISP Scarlet (formerly Tiscali) was found liable in 2004 for the unauthorised exchange of music files through its service and, in a judgment made available this week, the Belgian Court of First Instance has ordered Scarlet to put into place blocking and filtering mechanisms to stop its users sending or receiving music through peer-to-peer application offering a glimmer of hope to record and film companies.

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