File-sharers' identification refused by German prosecutors

Recent cases in the German Local Court of Offenburg have confirmed the
reluctance of the German public prosecutors in determining the identities of
P2P users that have allegedly breached the copyright law.

The German online publication Heise has revealed that in a recent case in
the Offenburg court, the judge decided to reject the music industry claims
to order the ISPs to reveal the subscribers that were suspected of having
infringed the copyright through peer-to-peer applications. The court
considered the measure as “disproportionate”and the plantiffs did not show
how the alleged offenders had been involved in actions that had created a
“criminally relevant damage”.

The Offenburg Local Court confirms its jurisprudence set on 20 July 2007
when the public prosecutor’s office was not allowed to ask the ISPs for the
identification of P2P users, considering that sharing some music files via
P2P was “a petty offense.”

This is not an uncommon practice in Germany, as Heise reveals. The public
prosecutor’s office in Celle dismissed a complaint by a law firm, known for
filing these type of suits on a massive scale for the music industry. The
law firm was complaining about the fact that the public prosecutor’s office
in Hanover refused to start an investigation on order to reveal the names of
the persons behind some IP addresses provided by the firm.

But the public prosecutor’s office in Hanover was in line with its
supervisor in Celle doubting that the law firm was “genuinely interested in
initiating criminal proceedings.” They considered the offenses as minor and
that no substantial damage had occured. The Celle public prosecutor’s office
said 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, but 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 endeavors of the prosecuting
authorities with their limited resources.”

In a reply in a similar case when a law firm asked the identification of
9,186 IP addresses, the chief public prosecutor’s office in Berlin went on
accusing 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 German examples bring more trouble to the file-sharing lawsuits
initiated by the music industry, after the recent opinion of the Advocate
General Juliane Kokott from the European Court of Justice (EJC) who
considered that, according with the EU law, the ISPs are not obliged to
reveal personal data in civil litigation cases.

This opinion was recently brought in front of the public eye in Sweden,
where the Justice Department announced that a new legislation that would
allow the copyright holders to obtain the identity of people that share
illegal content over in the Internet could be initiated by the Swedish
Government. Rickard Wessman, spokesman for Justice Minister considered the
opinion as “hard to interpret” and affirmed that they were waiting for the
final result from the European Court of Justice in that case , but still
“believe that our proposal is compatible with the directive. ”

Public prosecutors refuse to collect IP address-related information from
providers (2.08.2007)
http://www.heise.de/english/newsticker/news/93759/

Music industry rebuffed across Europe on file-sharing identifications
(3.08.2007)
http://www.out-law.com/page-8353

EU court ‘could scupper Swedish piracy law’ (22.08.2007)
http://www.thelocal.se/8263/20070822/

EDRI-gram : ECJ’s Advocate General says no handing traffic information in
civil cases (1.08.2007)
http://www.edri.org/edrigram/number5.15/traffic-data-civil-cases

EDRI-gram: Sweden wants tougher laws against file sharers (18.07.2007)
http://www.edri.org/edrigram/number5.14/sweden-file-sharing