German court protects privacy P2P users

By EDRi · June 2, 2005

The Higher Regional Court of Hamburg (Hanseatisches Oberlandesgericht) has squashed an earlier verdict forcing an ISP to hand over data about customers suspected of running an FTP-server with copyrighted music tracks. Being a mere access provider, the paragraphs in the Copyright Act that specify an information duty don’t apply, the court writes. Those provisions only see to parties that are involved in the multiplication or distribution of pirated physical items. Moreover, the argument of complicity in the act doesn’t apply either, the court states, because the ISP has no active role or obligation to monitor all traffic preventively. Finally, the music industry also fails in its appeal to general liability provisions for providers in the Tele Services Act (TDG). The obligation to remove and block information once its illegality or unlawfulness has been established does not imply an obligation to divulge information.

In fact the service provider argued that it was difficult to trace the individual user, since the FTP-server was operated via dynamic DNS with dynamic IP-addresses distributed by the ISP. The accusation focussed on the unlawful upload of two different songs from 1 album from the German group Rammstein. The German record company provided the ISP with 36 dynamic IP-addresses.

The Hamburg court follows a similar decision from the Higher Regional Court of Main from 25 February 2005, also about an FTP-server.

The e-zine Heise reports that this latter legislation is about to change. Under the draft new Telemedia Act service providers would be “entitled to provide information regarding personal data to authorised agencies and persons.” Legal experts fear that this provision is so vague that in practice it will be interpreted as an obligation to hand over personal data.

Report in Heise (in English, 17.05.2005)

Ruling of the Hanseatisches Obergericht 5 U 156/04 (28.04.2005)

Ruling of the Oberlandesgericht Frankfurt am Main 11 U 51/04 (25.01.2005)