Angry pro software patent company takes down FFII website

The long running legal fight between the German software company Nutzwerk (Leipzig) and the Foundation for a Free Information Infrastructure (FFII, best known for its extensive lobby against software patents) has culminated in the takedown of the FFII.org website on 1 August 2005. Technically, the website itself wasn’t removed, but in a far more radical move, the German company Teamware removed the DNS-registration of the website, making it invisible to the rest of the world. Nutzwerk justified the takedown claim to Teamware by referring to an intermediate Hamburg court injunction that ordered FFII to remove some specific phrases and an insultory headline about Nutzwerk. The line was: ‘Nutzwerk: Zuck und Nepp mit Softwarepatenten’ (which roughly translates as ‘gamble and fake with software patents’).

Teamware was afraid it might be sued if it didn’t take action, but also hesitantly admitted to the Dutch e-zine Webwereld that there could also be costs if Nutzwerk’s claim was false and FFII would sue for damages. A spokesperson told Webwereld: “We did offer FFII the possibility to host their dns domain at another party,” and even the reporter was offered to administer the domain. The DNS-provider of the almost identical website at www.ffii.de has not yet succumbed to the legal threats, nor has the hosting company of this website, www.united-domains.de.

FFII has covered extensive reporting about 6 patent claims of the company, following a public patent software row between Nutzwerk and the company Cobion. One of these patents expired, two were declared invalid and two were withdrawn. One patent has not been granted yet. When Google in 2003 showed a high page rank for these files about Nutzwerk, the company started litigation. Later, FFII dug up news about confronting and/or misleading search terms bought by Nutzwerk, including the term ‘Scheiss Juden’ to advertise an anonymous surfing service. Currently the FFII website contains some documented comments about a link-farm operated by Nutzwerk, to confuse searchbots with many metatags. After publication of this practice, Nutzwerk silently but immediately removed all the misleading referrals.

The legal case started in October 2004, when Nutzwerk simultaneously launched civil proceedings at courts in the cities Halle, Leipzig and Hamburg, making it extremely expensive for FFII to defend itself. When the reputable e-zine Heise reported about the case, on 28 October 2004, Nutzwerk also started to litigate the publisher and the editor-in-chief. In a recent article on the case, Heise writes they have already won in 10 different court proceedings.

While Nutzwerk claimed damage to personality rights, the FFII defence attorney claimed freedom of speech rights, within the context of educating a large audience about the problems arising from software patents. Since the entire FFII website consists of links and commentaries to developments with regards to software patents, the Nutzwerk file is nothing exceptional. Besides, the attorney pointed out, Nutzwerk didn’t succeed in criminal proceedings against Cobion and also lost at the German patent court.

The Hamburg court ordered FFII to remove 8 critical sentences, in Halle Nutzwerk “lost 80% of the case” FFII says and in Leipzig Nutzwerk even withdrew the case completely. According to EFFI, since May 2005 Nutzwerk has successfully intimidated several web portal operators to remove links to the documentation and succeeded in taking several entire websites down. On 26 July 2005, the Internet service provider of the FFII, BayCIX, received a similar takedown request:

“In accordance with the regulations of the telecommunication service act (/Teledienstgesetz/) you are obliged, after getting knowledge of illegal contents, to remove them (in comparison to the ruling of the Federal Court (/Bundesgerichtshof/) from September 23rd, 2003, about reference number VI ZR 335/02). We hereby demand you to de-connect the IP address 212.72.72.97 immediately, but no later than on 28 July 2005, at 18:00 (6pm).”

BayCIX wasn’t intimidated. FFII claims the reference to the Federal Court ruling is erroneous, since the case wasn’t about takedown, but about a specific claim transfer from a website author to an internet service provider. In general, German jurisprudence rather excludes liability if the author is only citing external sources. The express ruling of the local court in Hamburg did not affect the nutzwerk.ffii.org documentation as a whole nor the FFII server as a whole, but only 8 specific phrases. These phrases were removed by FFII by mid-July 2005. But Nutzwerk continues to send takedown letters, as if reporting about the court decision is also forbidden.

Self-censored FFII case file on the legal battle against Nutzwerk (in German)
http://nutzwerk.ffii.org/index.de.html

FFII overview in English of press articles about the case
http://wiki.ffii.org/NutzwerkEn

Webwereld article, by Brenno de Winter (in English)
http://dewinter.com/modules.php?name=News&file=article&sid=194

Heise article (02.08.2005)
http://www.heise.de/newsticker/meldung/62354

Counter file on the proceedings against Heise by Nutzwerk (in German)
http://www.nutzwerk-heise.de/