Techdirt. Stories filed under "germany"

How GEMA Is (Still) The Worst 'Collective Rights' Organization In The World

Tim Cushing — Thu, 16 May 2013 00:08:00 PDT

We've discussed GEMA's antagonistic attitude towards, well, pretty much everyone other than itself. In addition to turning the German YouTube experience into a farcical collection of "Sorry" faces and demanding fees for music it doesn't even control, GEMA has also been in the news due to its rollout of a "streamlined" fee structure that threatens the existence Germany's underground club scene with unsustainable licensing rates.

Luis Manuel Garcia at Resident Advisor has put together a very thorough and excellently written rundown of the recent events, covering GEMA's attempts to "streamline" its licensing fee structure (and its adverse effects) and explaining some of the organization's idiosyncrasies. (This is a very nice word for GEMA's thuggish tactics that go beyond villainy to cartoonish supervillainy.) There are a few differences between GEMA and other performance rights organizations (BMI, ASCAP, PRS, etc.). Much of this has been covered here before at Techdirt, so I'll give you some of the high/low points of GEMA's services, with some added details from Garcia.

Rather than being limited to "public performance rights," GEMA handles "collective rights management" for its 64,000 German members and 2,000,000 worldwide members. GEMA still collects licensing fees from businesses but its power goes much, much further than ASCAP's or BMI's.

GEMA decides how to distribute your work... and at what price.

This means that music-makers don't sign over ownership of their music upon joining GEMA, they sign over their usage rights—the right to legally manage and collect licensing fees for playback, reproduction and broadcast of their music. This is a convenient arrangement when you're a small-time musician who doesn't have the time or money to manage your catalogue; but these management decisions are taken out of your hands. If you want to grant a free license to a charity event or offer a reduced fee for a career-advancing event, you'll find that decision isn't yours to make.

All music is assumed to be under GEMA's control unless the artist can prove otherwise.

Unlike ASCAP, BMI, PRS, etc., GEMA isn't opt-in. And it's pretty tough to opt out. GEMA tends to "play it safe" by claiming music it doesn't own.

Like other PROs, GEMA distributes licensing fees to top-selling artists.

This distribution scheme is unlikely to change in the hands of GEMA. Its so-called "full members" (members who have achieved over €30,000 in GEMA revenue over a five-year period) are the only members allowed to vote on issues or hold controlling positions. Any artist not within this elite group has to watch his or her fees being redistributed to already wealthy artists while being prevented from attempting to effect any change in the prevailing structure.

GEMA assumes (like other PROs) that every venue plays only music from top-selling artists.

For underground music venues that mainly feature non-mainstream and independent artists—like many dance music clubs—this means that a portion of the fees collected for these events will likely find their way into the bank accounts of mainstream artists and advertising jingle writers, whose music was never played during the event, while some artists will never see a single cent for their music, however popular it may be.

GEMA splits music into three categories which affect rates collected and royalties paid and arbitrarily decides for the artists what category their music falls under.

It classifies music into three categories: entertainment [Unterhaltungsmusik], serious music [Ernste Musik] and functional music [Funktionsmusik]. It then subjects these categories to different fee rates, membership requirements and weighting in the points system they use to calculate royalties. Unsurprisingly, U-Musik gets the worst of this arrangement, having the highest membership requirements, the highest fee rates and the lowest values for royalty calculations

Unlike other PROS, GEMA is a "for-profit" organization that enjoys a government-granted monopoly and legal powers.

Making all of this worse is the fact that GEMA is a private interest "for-profit" organization, unlike most PROs which operate under a "non-profit" status. GEMA also operates as a monopoly, a problem made worse by the German government's decision to grant it legal power to "protect" the rights of its members.

How GEMA went from bad to worse

For years, the German government seemed to have no problem with GEMA's tactics and monopolistic operation. In fact, its only complaint was directed at GEMA's complex fee structure. GEMA responded to this by streamlining its rates with a clear eye on maximizing income. It was required to negotiate these changes with club owners and other affected parties, but its monopoly position basically turned the discussion into GEMA stating, "Here are your new fees," and walking away from the table.

Negotiations broke down sometime in late 2011, however, and an attempt to initiate legal arbitration failed as well. GEMA therefore decided to go ahead without the negotiations or arbitration and published a new tariff structure in the Bundesanzeiger (Federal Gazette) in April 2012, which effectively made the new tariffs legally-binding.

Now, the venues being hit hardest were nightclubs, especially underground clubs that catered to non-mainstream crowds and played non-mainstream music. GEMA's "streamlined" fee structure was built from the sort of opportunistic math that could only come from a self-interested monopoly. Any concessions to reality were thrown out the window in search of higher fees.

GEMA's opportunistic math

First, GEMA killed off yearly flat rates and replaced them with "per-event" charges. Supposedly, this was to "balance" fees between large and small venue owners. GEMA even claimed this would reduce fees for 60% of its "customers." But once it applied its GEMA-friendly calculations, everyone was guaranteed to see an increase in licensing costs.

GEMA calibrated the new rate for dance clubs (Tarif M-V) with the goal of charging approximately 10% of the gross income for a music event. Of course, they don't trust organizers to self-report their revenues accurately, so they estimate the gross income based on venue size and price of entry, and then charge 10% of that.

This estimation is based on three assumptions: 1) the capacity of a venue is one person per square-meter, measured wall-to-wall (i.e. beyond the dance floor and ignoring solid objects like furniture); 2) the event is full to capacity; 3) everyone is paying full price for entry.

This sort of mathematical assumption would ruin any normal business. Fortunately for GEMA, it's a government-ordained monopoly which exists solely to extract fees. The more it extracts, the healthier it is. Under the old flat-rate structure, a 500 square meter club would have paid around €7,800 annually. Under GEMA's new plan, this leapt to over €78,000.

When club owners complained about this exorbitant rate hike, GEMA responded (belatedly) with a nominal attempt at "fairness."

In answer to complaints about these distorted results, GEMA later introduced the Angemessenheitsregel (appropriateness rule), which allows promoters to apply for a partial refund if GEMA fees are well over 10% of actual gross income or if the venue's capacity is well under GEMA's one person / m2 ratio.

In other words, club owner would still need to pay up front and hope GEMA would cut them a (partial) refund check sometime in the next several months. Seeing as GEMA doesn't trust club owners to honestly self-report revenues (hence the lousy fee structure), it wouldn't be surprising if it decided these refund requests were dishonest as well, and rejected a majority of them.

This rate hike hit underground clubs hardest, but GEMA wasn't done punishing them yet. GEMA also levied a rate hike based on the length of the event, jacking the rate up by 50% once the event passed 5 hours and adding another 50% hike every two hours after that. This led to astronomical charges for clubs that routinely ran 10-hour-plus events or operated around the clock. As more outrage poured in, GEMA dialed this back to a 25% increase every two hours after the 8-hour mark -- not as bad, but still unaffordable.

GEMA tacks fees on hardware and data

Obviously, GEMA felt it still wasn't making enough money from these events, so it decided to start double-dipping by cramming its hands into the DJs' pockets.

[I]n late November GEMA announced another tariff, VR-Ö, which became known as the "laptop surcharge." It applied to all music performances that use blank media such as CDs, tapes, USB sticks and hard-drives. This already existed in the past as an automatic 30% surcharge on the entirety of GEMA music licensing fees if any of the DJs used mp3s or burned CDs. Now, the surcharge would no longer be a percentage of the fees, but would instead be calculated at 0.13€ for every mp3 file on the DJ's computer. Every song over five minutes costs an extra 20% per minute. Performers and promoters all over Germany were not pleased, especially since the rate appears to charge all files on a DJ's performing device, regardless of how many songs they actually play.

The backlash

All of this led to protests against GEMA and its club-killing license fees. A petition managed to gather enough signatures to get the government's attention. The German government looked into GEMA's fee structure and its opportunistic club revenue calculations. GEMA reentered negotiations with artists' representation and rolled back its fee structure to its pre-"streamlined" levels. It also adjusted its "laptop surcharge" to a flat rate of 50 euros per 500 songs, making this more affordable for DJs, if not actually any less presumptuous and stupid. (RA says some Germans feel this is nothing more than an opportunity for GEMA to jack the rates later on its newly collected list of registered DJs.) There's also been a call for German legislators to craft policies to regulate GEMA's actions.

The outcome of this controversy has been a little better than expected, considering GEMA's horrible track record. Still, as is evidenced by GEMA's ongoing battle with Google/YouTube, the rights organization still has a long way to go before it will be considered anything other than predatory and overbearing. German artists should at least be given the chance to opt out without having to jump through GEMA's hoops.

And all rights organizations should start making an honest effort to track actual usage, rather than simply throwing more money at those artists who already have plenty. It's 2013 and the technology exists to make this possible. PROs (and GEMA) are simply being willfully obtuse by pretending they can't do anything better than cut checks while eyeballing the latest Billboard chart.

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USTR Special 301 Report Doesn't Even Mention Germany Trampling Fair Use

Mike Masnick — Tue, 7 May 2013 15:43:14 PDT

Last week, when the USTR's infamous Special 301 Report (pdf) came out, one of the things that I was most interested in was how the USTR would treat Germany. After all, back at the beginning of March, Germany's lower house, the Bundestag, passed a somewhat watered-down, but still troubling, bill concerning the quoting of "snippets," saying they would need to be licensed. The watered down part noted that "single words or the smallest excerpts" would not require a license, but no one has defined what "smallest excerpts" means. At the beginning of April, the upper house, the Bundesrat, declined to challenge the bill, effectively making it law in Germany. The text of the bill notes, in part, that:

The producer of press materials (press publisher) shall have the exclusive right to make these press materials publicly available, in whole or in part, for commercial purposes, unless it is a matter of single words or smallest text excerpts.

While there's still uncertainty over what it means, CCIA alerted the USTR that this almost certainly represented a violation of the Berne Convention's Article 10(1), which states:

It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

It is difficult to see how the German law does not violate that, and thus, it would appear that the new law is a form of a trade barrier on US companies due to improper use of intellectual property laws -- which is exactly what the Special 301 report is supposed to call attention to. Of course, historically, the USTR has only used the Special 301 report to call out countries who aren't creating strict enough copyright, patent and trademark laws -- not those which have made them too strict.

So here we had a clear example where Germany had created a form of an "IP" law that went too far, beyond our trade agreements, in a clear attempt to try to create a form of a trade barrier against US companies, to block them from doing things like creating a new search engine. So how would the USTR react?

Well, apparently by ignoring the issue entirely.

The only mention of Germany in the entire report is the following:

U.S. industry has expressed concerns regarding the policies of several developed trading partners, including Finland, Germany, Greece, Hungary, Italy, Korea, New Zealand, Poland, Portugal, Romania, Spain, Turkey, and Taiwan, on issues related to innovation in the pharmaceutical sector and other aspects of health care goods and services.

No further explanation or discussion is given. Basically, it looks like the USTR really just doesn't much care when other countries create even stricter IP laws -- or when those IP laws might impact the internet industry.

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Deutsche Telekom Dumps Net Neutrality; Will Limit Bandwidth For Competing Video & Voice Products

Mike Masnick — Fri, 26 Apr 2013 12:16:00 PDT

It appears that Deutsche Telekom has decided that it can and should ignore the basic principles of net neutrality. It is setting up limits on how much traffic its customers can use, and saying that competitors' video products will automatically be throttled to 384k, which makes them basically useless. But, of course, this throttling does not apply to Deutsche Telekom's own video offerings.

The data traffic generated by the use of Telekom' own IPTV platform Entertain won't be attributed to the volume integrated in the tariffs. "With Entertain, customers book television. We will therefore ensure that they will not suddenly sit in front of a black screen," explained Hagspihl. Also, voice telephony through Telekom's fixed line subscription will be excluded.

But... competitors? Well, too bad. This is a fairly bold move by DT. Of course, telcos have long wanted to do this, trying to force people and lock them in to their own (often overprice and underpowered) services, but to directly punish competitors is a pretty blatant statement by Deutsche Telekom that it thinks it can get away with this because of its dominant position in the market. Of course, if I'm a Deutsche Telekom customer, I'd be incredibly pissed off that Deutsche Telekom is basically telling me that I'll be penalized for using other video or voice services, even if they're better. Yes, those competing services will work fine beneath a certain traffic level, but people don't realize just how much data they often use these days -- especially when you're talking about bandwidth-heavy video.

Deutsche Telekom's explanation for this is almost entirely bogus.

"We want to continue offering our customers the best network in future into which we invest billions of euros. However, constantly increasing bandwidths can't be financed through constantly dropping prices. We will have to charge customers with very high data consumption more in future," said Michael Hagspihl, managing director marketing at Telekom Deutschland.

First of all, broadband remains an incredibly profitable business, and while the telcos love to make these claims, they're simply not supported by the data. They're making money like crazy on their existing networks, and although keeping up with the growth in bandwidth does require some investment, it's easily affordable under the current structure. What this is about is exactly what everyone knows: killing off competitors, limiting the market from disruption and trying to control these other services, like video and voice, so that people are forced into using Deutsche Telekom's own services.

In fact, Deutsche Telekom's CEO more or less shows off the standard hubris of telco execs these days, believing that the only thing that's important on the internet is his network, and everything else you get is only because of him:

"Without our telecommunications networks and modern primary products there wouldn't be any online services coming from Google or Apple," [Deutsche Telekom CEO Rene] Obermann told the Deutsche Presse Agentur.

Uh, I think you mean that without your monopoly power over the network people wouldn't have to use your lines to reach those services, which is what they really want. The "value" here that people get isn't Deutsche Telekom. They supply the pipes. The value is in all of the various services available, and Deutsche Telekom is trying to make those useless... oh, unless, those service providers want to pay up. It's the same old net neutrality story. The telcos overvalue their networks and they try to get paid twice for the same thing. They want customers to pay to reach Google and Google to pay to reach the customers.

Thankfully, the German government isn't too keen on where this is going:

Economic Minister Philipp Rösler voiced concern in a letter to Telekom's CEO Rene Obermann on Wednesday, a copy of which Spiegel Online obtained.

In the letter, Rösler warned of possible restrictions for "flat rate" customers. He said Federal government and consumer protection authorities would "follow very carefully further developments in relation to the varying treatment of Telekom's own services, and that of others, in terms of network neutrality."

Federal Consumer Protection Minister Ilse Aigner also criticized the new policy in an interview with Spiegel Online. "At first glance, progress for the customer can not be seen," she said. "Limiting flat rates is certainly not consumer-friendly," the Bavarian conservative CSU minister said.

Deutsche Telekom has its dominant position in the market because until not that long ago it was the state owned telecom provider. Trying to block out competitors with bogus excuses and limitations for consumers certainly seems like a pretty big abuse of that position.

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Google Fined For Wi-Fi Privacy Violations, Grandstanding German Regulators Not Satisfied

Leigh Beadon — Mon, 22 Apr 2013 10:49:00 PDT

Google really screwed up when its Street View cars accidentally collected data from open wi-fi networks around the world, and it's a good thing that the practice came to light and people called them on it—but that's where the good sense of the situation seems to end. It's really important to keep some perspective here: Google collected open wi-fi data and didn't do anything with it. In terms of potential breaches of privacy permitted by the user's own lax security, I'd say the "victims" got off easy in this case. But from the way lots of politicians and news outlets tell the story, you'd never know it.

Though Google has mostly wrapped up the issue in the US, it is still dealing with the governments in other countries, and the latest news is that it has been fined €145,000 in Germany. Since that's pocket change to Google, frustrated regulators are calling for bigger weapons with which to slay the giant:

The country's data chief called it "one of the biggest known data protection violations in history".

But the regulator admitted the amount was "totally inadequate" as a deterrent to the company.

...

Under European regulations, the maximum fine for an accidental violation is 150,000 euros - but data protection supervisor Johannes Caspar called for that amount to be increased in future.

In a statement, the regulators said: "Among the information gathered in the drive-bys were significant amounts of personal data of varying quality. For example, emails, passwords, photos and chat protocols were collected."

Like so much of the response to the situation, a lot of this is political grandstanding spread by media outlets that are perfectly willing to make people paranoid about Google. Scrutinizing Google's privacy practices is definitely a good thing—this is a company a lot of people trust with a lot of data—and when they screw up, as they did here, they should face the consequences. But assuming they have villainous intentions in everything they do is foolish, and misrepresenting what happened here is wrong.

For starters, people love to list off the things Google collected—emails and passwords and the like—to imply that this was some sort of organized spying scheme. What they leave out is that the Street View cars were just arbitrarily recording bits of data they picked up from the open wi-fi networks, and while it certainly did include sensitive bits and bytes, there was no system or plan for actually looking through the contents of this data or making use of it. You might as well say the garbagemen have been collecting financial and government information, since there are plenty of sensitive documents in the trash.

Note the careful choice of words in calling this "one of the biggest known data protection violations in history." Maybe it is the biggest, in terms of sheer scale, but it earns no further superlatives. It's not the worst, nor the most damaging, nor the most secretive, nor even the most technologically advanced. Just the "biggest" in the most technical sense, which doesn't really mean much at all.

Then there's this idea that the fine is inadequate to deter Google. While any law based around fines is going to face the potential problem of rich people ignoring it, things are once again being blown out of proportion here. The regulators want to tell the story of the big, bad, deep-pocketed company that can defy the law with impunity, so that they can level bigger fines with more impressive headline dollar figures in the future—but that leaves out any discussion of whether the fine itself is appropriate. You can't tailor a fine to the richest potential violator of a law... What if it had been a small German startup hoping to create a local competitor to Street View that had made this mistake? Would privacy regulators still be calling for higher fines? For that matter, would they have pursued it at all, or just told them to knock it off?

Conversely, if Google or another company had actually made use of all that sensitive data—if they had read people's emails, or stolen anyone's credit card info ,or even made a text-file list of logins and passwords that was clearly intentional—then there would be other things to go after them for. You can bet they'd be facing big lawsuits and much more serious charges if there was even a hint of genuine fraud or hacking—but despite the best efforts of investigators in several countries, no such hint has been found. Google is facing a limited fine for the limited charge of collecting data because that's all it did. And let's still not forget that this was data on open wi-fi networks—no more secure than a CB radio, despite the tech-mystique that may surround it.

So let's keep holding Google to the highest standards of privacy, but let's not turn it into a witch-hunt. Accusing them of flagrant data-theft for what was in fact a technical oversight is bad for everyone. Apart from the fact that disinformation is always bad, placing all the blame on Google means failing to teach people about the nature of open wi-fi, meaning many of them are probably still leaving their data out there for anyone to see. And if nothing else, we certainly don't want to provoke that "well, if they're going to say we did it anyway...." mentality in Google.

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If Microsoft Shuts Down Google Maps In Germany, How Does That Benefit The Public?

Glyn Moody — Tue, 12 Mar 2013 08:47:28 PDT

Most sane human beings have stopped trying to keep up with the interwined legal actions arising out of the smartphone patent wars between Apple, Google, Motorola, Nokia, Microsoft and all the rest. The cases, though, are still grinding through the courts, which periodically throw out their verdicts. According to Florian Mueller, one such decision in Germany is imminent:

Judge Dr. Matthias Zigann of the Munich I Regional Court just told Google and its Motorola Mobility subsidiary in no uncertain terms that his court is at this point (prior to counsel's argument on claim construction, infringement and validity) inclined to hold Google Inc., its subsidiary Motorola Mobility LLC and MMI's German subsidiary liable for infringement of a key Microsoft patent, EP0845124 on a "computer system for identifying local resources and method therefor", which is the European equivalent of U.S. Patent No. 6,240,360.

Here's that EPO patent: A map of the area of a client computer (10) is requested from a map server (11). Information relating to a place of interest is requested from an information server (12) by the client computer (10). The information is superimposed or overlaid on a map image at a position on the map image corresponding to the location of the place of interest on the map. The information (or "overlay") server (12) may contain details of, for example, hotels, restaurants, shops or the like, associated with the geographical coordinates of each location. The map server (11) contains map data, including coordinate data representing the spatial coordinates of at least one point on the area represented by the map.
As the claims make clear, it's exactly what any half-way competent engineer would come up with given the task of providing certain kinds of information local to a geographical location. Moreover, it is of course implemented in software; given that Article 52 of the European Patent Convention explicitly excludes "programs for computers" from patentability, the fact that the EPO granted a patent here is an early example of how it circumvented that exclusion because a computer was used to run that software (well, doh.)

There's another problem with the patent, as Mueller's post makes clear:

Microsoft is seeking, and now very likely to obtain, a German patent injunction against the Google Maps service, the Google Maps Android client app, and web browsers providing access to Google Maps. In order to comply with the injunction that looms large, Google would have to disable access to Google Maps from computers using a German IP address, discontinue shipping the Google Maps Android app in the German market, and distribute web browsers in Germany only if they block access to Google Maps in a way comparable to Internet filters used for the purpose of parental controls.

If that turns out to be the case, and Google isn't able to code around the problem, that means that the patent was ridiculously over-broad -- essentially, it's a patent on all implementations of the basic idea. That's unlike traditional patents, where alternative, non-infringing inventions can be devised to solve a given problem.

Moreover, Microsoft can't fall back on its usual justification that it spent years of research and huge amounts of money developing this "breakthrough" idea, and therefore deserves its sweeping monopoly. According to both the European and US filings, the original patent was granted to Sean Phelan, based in London. Here's the background:

Sean started Multimap.com as a bootstrap start-up in his spare bedroom in 1995 and built it into one of the 10 most popular British web services, with revenues of £12M and profits of £1M

Sean formed Multimap.com to bring together his lifelong love of sailing and navigation with his experience with the internet and web-based technology. Through Multimap, Sean realised his vision of services based on the integration of navigation, wireless communications and the web. He is one of Europe's original internet entrepreneurs, with a unique combination of business and technical skills. In December 2007 the company was acquired by Microsoft for £30 million, cementing its position in the ranks of Britain's internet success stories.

And good for him. But buying his patent doesn't give Microsoft -- or anyone -- the right to lock out competitors from the entire online map space. If Mueller is right, and a broad injunction is granted against Google Maps, the net result will be millions of Germans unable to use this popular service in a Web browser or on their smartphones. In what way does that benefit society or promote innovation?

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German Newspaper 'Snippet' Law Passes: Watered Down, But Still Stupid

Glyn Moody — Fri, 1 Mar 2013 10:52:00 PST

For a year now, Techdirt has been following the sorry saga of Germany's attempt to make search engines and others pay for licenses to show even small excerpts from online newspapers. The main motivation seems to be to take money from Google for being successful, and to give it to the German publishers that are struggling.

Even though the idea that newspapers were suffering because of the short excerpts shown as part of search results is absurd, and existing copyright law already forbids unauthorized use of longer extracts, publishers had enough friends in the German parliament to get the "snippets" law pushed through today. However, along the way, a small amendment was made to the text that makes it slightly less damaging. According to the new wording (pdf - German original), quotations will have to be licensed unless they are:

single words or the smallest excerpts

Unhelpfully, no definition for "smallest excerpts" is given, which means there is still considerable uncertainty over just how many words can be quoted without paying a licensing fee. That's bound to have a chilling effect on the use of snippets, as publications err on the side of caution before court cases begin to establish what is and isn't acceptable. Another issue is whether quotations in blogs or on social networks will be exempt: according to the German magazine Der Spiegel they will ("probably", in the case of Facebook). But again, we won't know for sure until cases come to court.

Happily, there is still some doubt over whether the law will ever come into force. According to Der Spiegel again, the SPD (Socialist Party) may be able to overturn the law in Germany's other legislative body, the Bundesrat. Let's hope it succeeds, and saves Germany from the embarrassment of trying to implement such a backward-looking and unworkable law.

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Top German Police Officer: 'Anyone On The Internet Has Left The Private Sphere'

Glyn Moody — Wed, 27 Feb 2013 03:39:38 PST

The Internet as a mass medium is still relatively young, so it's no surprise that its function in society and in our daily lives is still being defined. One important question concerns the nature of our actions online: to what extent are they public? Here's one rather extreme view, expressed by Jürgen Maurer, vice-president of Germany's Federal Criminal Police Office, as reported by Der Spiegel (original in German):

Anyone on the Internet has left the private sphere, and finds themselves in a kind of public sphere.

That's no mere detail, of course: actions that are perfectly acceptable in the private sphere may not be in public, and vice versa, so it's crucially important to know where you are at a given time. For example, there are many things you might get up to in the privacy of your own home that would not be allowed in public. Similarly, it's generally regarded as OK for the police to keep an eye on what happens in public places, but their interest in people's bedrooms most certainly wouldn't be.

Since Maurer seems to believe that anything you do online, however personal and intimate, takes place in "a kind of public sphere," perhaps he'd like to follow that through, and start posting all his Internet activity online for the public to enjoy. Or maybe his idea of the public sphere online really just means "a place where the police don't need to get a warrant to spy on people...."

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Copyright Dispute Means Germans Can't See All Those Russian Meteor Videos

Mike Masnick — Thu, 21 Feb 2013 13:59:29 PST

You might have heard about last week's Russian meteor strike. The news, which broke quickly and was so odd that many initially suspected a hoax or even a viral marketing campaign, was rapidly realized as legitimate. Part of what helped the news spread so quickly was a ton of videos uploaded to YouTube very quickly, the vast majority of which came from dashcams in cars -- showing the fiery trail through the sky from a variety of different angles and distances. A bunch of publications covered the fact that having a dashcam has become almost a necessity in Russia to use as evidence concerning accidents and to prevent scams, which are unfortunately common.

But, of course, when people drive, they're often listening to music. And so many of the dashcam videos of the meteor include music playing from car radios. And, as we've discussed many times, in Germany, most popular music is blocked from any YouTube video due to a longstanding (and ridiculous) legal fight between YouTube and GEMA, the German music collection society. GEMA wants rates that are simply laughable, so throughout Germany, most videos that contain music get blocked.

And yes, this means that a large number of these videos are being blocked in Germany, as noted by Cyrus Farivar over at Ars Technica. The text there says:

Sorry, this video, which includes music from SME [Sony Music Entertainment], is not available in Germany because GEMA has not granted the publishing rights thereto.

Amusingly, when Farivar asked GEMA for its response to all of this, it answered (via Twitter):

YouTube blocks apparently randomly.

Which is an... interesting interpretation of that ongoing fight. And by "interesting," I mean completely wacko. Another part of that conversation included GEMA trying to blame YouTube further for this, and then defending this whole thing by saying:

GEMA is obliged to all users who give of their perceived rights for a reasonable allowance d copyright.

And, apparently, that includes incidentally overheard radio music in videos which have tremendous importance in news coverage.

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The Continuing Disaster Of Open Government In Germany

Glyn Moody — Wed, 20 Feb 2013 00:07:02 PST

Recently, Techdirt noted that the European "database right" could pose a threat to releasing public data there. But that assumes that central governments are at least trying to open things up. A splendid piece by Sebastian Haselbeck on the Open Gov Germany blog, with the self-explanatory title "German government screws up open data," underlines that things can fail because the government itself sabotages transparency moves.

As he recounts, things began so well. The German government commissioned a study on open data, which was published in August last year. It's a massive, 572-page document put together with commendable thoroughness. A key section is the introduction from the German Interior Minister, Hans-Peter Friedrich, who made the following comments:

The [German] federal government has set itself the goal of a more open government and administration. The basis for this is freely available data and information that must be available for others and in standardized formats.

That all sounds great -- open data made freely available in standard formats to promote open government. But then things started to go downhill, culminating in the horribly symbolic decision to name a new site not "Open Government Portal Germany" as originally planned, but just "GovData -- the data portal for Germany". In other words, some data, but without the openness. As Haselbeck comments: Following the development the last few weeks it seemed clear that the conservative elements in the higher echelons either just did not get what it means to finally go "open government" in the data dimension, or they were just too scared to follow through.

…

Experts can but shake their heads, and sigh at the squandered opportunities of this government, which would love to be very innovative in economic dimensions, but is actually a very backwards cabinet with lots of conservatives in key positions and a liberal coalition partner that is mostly occupied with its own ultra-low poll numbers.
What's worrying is that this high-profile retreat is part of a larger failure to improve transparency in Germany. Haselbeck explains: All this adds to a series of disasters in open government in Germany. One is the stubborn denial to join the Open Government Partnership (OGP), along with the partners in crime Austria, Switzerland and Lichtenstein. As an act of spite, they formed the "DACHLi" (the acronym for the countries' licence plate IDs) initiative, a series of workshops and cooperation agreements to mostly push information exchange and open data cooperation in a way that they have nothing to fear from it, and provide ample platforms for lobbyists to talk CIOs into purchasing proprietary IT solutions for "open" government. All the while, you can count the actual attempts for more cultural and managerial change towards openness with one hand. Another of those disasters is the government’s battle against a community-built Freedom of Information platform (fragdenstaat.de) and its failure to make publicly accessible studies produced as part of the parliamentary research service (after all, paid by the taxpayer). A third thing comes to mind: the failure to ratify the UN Convention against Corruption, along with a handful of other rogue states, because it would require reform of the federal criminal code that would tighten rules for politicians' leeway to accept campaign donations and stricter transparency on their side-jobs. Look it up, Germany is in good company there, even Myanmar is ratifying the convention.
It's sad to see such a generally tech-savvy nation fall behind here, as other countries open up their government and its data ever-more deeply. That's a loss not just for German society, through diminished political transparency, but also for the burgeoning number of digital start-ups in cities like Berlin, which are deprived of a key 21st-century raw material: government data.

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CCIA Argues Germany Should Be On The 'Naughty' Special 301 List For Attacking Fair Use

Mike Masnick — Mon, 18 Feb 2013 09:01:21 PST

For years we've talked about the infamous Special 301 Report, in which copyright maximalists complain to the USTR about countries they feel aren't cracking down enough on "infringement." The USTR then comes out with an official report that lists what countries have been "naughty" (with two levels of naughtiness). There is no objective measure -- basically the USTR just lists out the countries that the biggest maximalists dislike the most. And then the State Department uses that bogus list to apply pressure to foreign governments to get them to ratchet up their draconian copyright laws. While the "comment" period is open to anyone, it tends to be dominated by maximalists. We tried filing our own comment a few years back, but have since realized that the deck is completely stacked. In fact, even the official questions they ask you to answer are heavily biased so that you can only complain about other countries that are "denying adequate and effective protection for intellectual property rights."

So while we figured it wasn't worth filing anything, our friends over at CCIA, who have backed some of the research that we've done, put in their own comment, which called out Germany for its attack on fair use. As you may recall, Germany has been pushing forward with this plan to force search engines to pay up for posting snippets and links to news sites. This is a pretty clear attack on basic fair use concepts that allow the internet to function. If you believe, as we do, that fair use is a right, then Germany's actions are, technically, a "denial of adequate and effective protection for intellectual property rights," and thus the country belongs on the Special 301 list. As CCIA writes:

These comments address a troubling new legislative proposal in Germany that would violate long-established rights of Internet services to make use of information online. The legislation would create a new Leistungsschutzrecht for press publishers, such as newspapers and magazines. Contrary to Article 10(1) of the Berne Convention, this proposed legislation would prohibit Internet platforms from displaying snippets of news stories without obtaining the publisher’s permission and paying a license fee for these quotations. While it is as of yet unclear, we expect that the new right will be administered by a collecting society, with newspapers that wish to exercise the new right being required to join. If this comes to pass, no search engine or affected social media platform will be able to directly negotiate with any publisher; they would instead be forced to enter into a blanket, compulsory license, or be penalized as an infringer of IP rights. Thus, the proposed legislation is simply a government mandated compulsory license, transferring money from one industry to another. As such, it would constitute a costly new market access barrier. Some commentators have even speculated that the legislation might force news search services and affected social media out of the German market, by not returning results for German IP addresses. At the same time, this proposal would have obvious debilitating effects on German-based Internet platforms.

There's a lot to be said for this argument, and for recognizing that user rights are an important part of copyright, not just the rights of the copyright holders. In fact, it's quite reasonable to argue that the public's rights should greatly outweigh the privileges granted under copyright. And, now, we will see if the USTR actually pays attention to such things, or if they will ignore it and only focus on maximalist privileges, rather than the public's rights. At the very least, this provides an excellent suggestion for filings in the future: there are lots of countries that don't have nearly enough respect for fair use or for other rights of the public when it comes to copyright.

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Germany's Curious Income Divide On Infringement Remedies: High-Earners Support Content Blocking, Oppose Disconnection

Leigh Beadon — Wed, 13 Feb 2013 08:43:13 PST

Recently, the American Assembly released Copy Culture In The US & Germany, a report based on an extensive survey about attitudes and practices surrounding media consumption and piracy in the two countries. (Disclosure: We supplied the design and layout work for the report.) It contains lots of interesting facts, and some very surprising ones—such as more support for content blocking than one would expect given the public reaction to things like SOPA and ACTA. We've already discussed one of the important broad takeaways—even more evidence that pirates buy more media—but amidst the smaller details in the survey are several other points that are worthy of a closer look.

First up is a curious trend that emerged in Germany: when asked if copyright infringers should face disconnection of their internet access as a penalty, opinion was roughly split among low-income respondents, while opposition was higher among those who earned more:

Opposition to disconnection also rises sharply with income (which in turn correlates with the propensity to buy media). Among penalty supporters who make more than €3000/month, 20% support disconnection; 74% oppose it.

Should Infringers Face Disconnection? (Germany, By Income)

As the report notes, this could have something to do with the fact that higher earners also buy more media—though that still doesn't make it entirely clear why this should be the case. Even more curiously, high-earners were more likely to support content blocking by ISPs, search engines and social networks, but still more likely to oppose internet monitoring.

It seems like there's a lot of room for conjecture as to what these patterns mean, if anything, so I'm throwing this open to our readers, especially those in Germany: what social, economic or other factors that correlate with income might explain this trend?

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The Many Motivations Of Movie Piracy (Notably Absent: 'I Want Everything For Free')

Leigh Beadon — Tue, 5 Feb 2013 10:33:00 PST

In the recently released Copy Culture In The US & Germany survey report from the American Assembly (for which we provided the design & layout work), one small but especially interesting component is the list of reasons given for downloading TV shows and movies. The American responses were pretty evenly distributed among the various key reasons, and serve as a laundry list of things that piracy does just slightly better, or slightly more permissively, than most legitimate sources:

Why I Download TV/Movies For Free (US, Based On Americans Who Do)

While price was one of the top three reasons, this hardly paints a picture of penny-pinching freeloaders—rather, it shows emerging trends in media consumption that distributors and rightsholders simply can't keep ignoring. Absolutely none of these responses are surprising, because they are exactly the way people have been interacting with the majority of content online for years now. They share, they use multiple devices, they expect comprehensive access and a choice of sources, they want access as soon as possible, and they are put off by obtrusive advertising.

Of course, that last item is a bit of an oddity. The knee-jerk reaction among most people is that all advertising is bad, but that seems to underestimate the amount of stuff that advertising pays for or subsidizes, and that most of us happily enjoy on a daily basis. Advertising is one of those things that only ever gets badmouthed, because you only focus on it when it's bad — when it's good it doesn't register as advertising because it doesn't register as intrusive. The perennial buzz around Superbowl commercials and the 44-million views on Old Spice's famous viral ad support this notion pretty strongly.

In the world of online television, I think there's room for both subscription models and advertising-funded models — and even some combinations of both if balanced correctly. But until content providers start tackling the overall problem by catching up to pirate sources in the many areas where their services fall short, no model is going to succeed in defeating piracy.

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Valve Sued In Germany Over Right To Resell Games

Timothy Geigner — Fri, 1 Feb 2013 08:39:39 PST

Valve's Steam platform has certainly been one highlight on competing with piracy here at Techdirt. As something of the iTunes of PC gaming, it provides a wonderful example of how a great platform and added value can give those who could otherwise be pirates a real reason to part with their gaming dollar. This isn't to say that the platform hasn't been associated with some issues, but Valve seems to be among those folks that get it right more often than they get it wrong.

Still, we won't shy away from pointing out where those problems exist. Neither will German consumer associations, apparently, as one has now sued Valve over the right for Steam users to resell the games they purchase on the platform. The Federation of German Consumer Organizations (VZVB) is going to court, stating that Steam users who have purchased games, own those games, and should be able to do with them as they please, including reselling them. Often times Steam users are limited in this regard due to the way downloads are associated with specific accounts, rendering any online component unplayable. Carola Elbrecht, project manager for VZVB's consumer rights in the digital world is leading the charge.

Because Valve forbids its users to sell or transfer their accounts to another person, the exchange of games that can only be played online is impossible, she said. This means that a Steam user only partially owns games, Elbrecht said. "If I pay the full price for a game, then why am I not allowed to do with it what I want," she added.

This obviously isn't a new question for us here at Techdirt. It's been a point of logical frustration for consumers that content producers often seem to want their output treated like property when it suits them, but as a service or license when it does not. This leads to, at the very least, the appearance of double-dipping on the part of content producers. For gamers, where used games are such an intregal part of the marketplace, the frustration often boils over. In my estimation, it's quite difficult to draw up a logical proof for limiting the rights to a product for the consumer while strengthening the rights for the producer. Such an arrangement is simply too one-sided in who is giving up whose rights.

Some may note that this isn't the first time VZVB has sued Valve over similar grounds. In 2010, a court ruled against them over whether or not refusing to allow Steam users to transfer their user accounts violated German law. The times, as they say, appear to be a-changin'.

The Court of Justice of the European Union (CJEU), however, ruled in July that the trading of "used" software licenses is legal and that the author of such software cannot oppose any resale. While the CJEU's case is not exactly the same as the current litigation against Valve, the VZVB reckons that the ruling gives sufficient basis for a new lawsuit, Elbrecht said. She expected the litigation to go on for years, and it will probably end up at the federal court again, she said.

At worst, the new ruling opens the door for this suit and perhaps sets a bit of a legal baseline in how to view these types of restrictions. It likely isn't any kind of slam-dunk case and there's no assurance any ruling will even go VZVB's way, but there's something else to consider: Valve has an extremely unsympathetic stance on their hands. While complex legalities and backdoor TOS language may rule the day in court, it likely won't in the court of public opinion. Sticking to their guns on something like this is a wonderful way for Steam to lose, er, steam in gaining a faithful fanbase.

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Dangerous: European Courts Considering Requiring Search Engine Filters Over Embarrassing Content

Mike Masnick — Thu, 31 Jan 2013 11:59:17 PST

Remember Max Mosley? He's trying to argue that search engines need to forget him. Mosley, the former head of motorsports organization FIA, got upset a few years back when UK tabloids, led by News of the World, published some photos of Mosley's "rendezvous with five sex workers" that involved some role playing -- the women were dressed as prison guards, and he as the "prisoner" who needed to be punished. One of the workers took some photos which leaked... and Mosley went legal. He sued News of the World on a couple of issues, and actually "won" on the more narrow issue of what kind of role playing he was involved in. The paper had described it as a "Nazi orgy," but Mosley (who is extra sensitive to this considering that his father, Oswald Mosley, was the leader of the UK Fascist party, and both Adolf Hitler and Joseph Goebbels apparently attended his parents' wedding) made it clear that the setup was merely a German prison camp, and there was nothing Nazi about it. He won that argument and News of the World had to pay up a fairly significant sum. The court also said that the story and the pictures invaded his privacy.

You can understand why he'd be upset about such private actions becoming public, but once they're public, then what? Most people would recognize that the best thing to do is to recognize that the information is public, and move on in life, allowing people to gradually stop caring. But not Max Mosley. He seems to have dedicated his life to forcing everyone to take overt actions to make sure that rich and famous people, such as himself, can never be embarrassed again. First, he argued that newspapers should be required to alert famous people before they are written about, allowing the famous people to then use the court to block any stories they dislike. Thankfully, the European Court of Human Rights rejected this request.

That did not stop Mosley, however, who first used the recent "Leveson Inquiry" (a response to the later story of News of the World hacking into phone lines) to push for new rules requiring search engines to delete the photos from ever being found online. And thus began phase two of Mosley's response to the article: he went on a campaign against search engines, believing that if he could somehow force search engines to ignore the photos from that original story, the world might forget about it. Even though, in the Leveson hearing, Mosley admits that he was warned that by taking this issue to trial in the first place, it would renew interest in the issue, including putting such private information into official public court documents:

I mean, when I had my first meeting with counsel, they explained to me very carefully that.... By taking the matter to court, the entire private information which I was complaining about would be rehearsed again in public, with all the press there, with the benefit of absolute privilege for anything that was said, and that at the end of all of that, no judge could remove the private information from the public mind. Indeed, by going to court, I was augmenting the degree to which the public were aware of it.

And, yet, Mosley still believes that it's possible to erase such things from the public mind, and the way to do that, obviously, is to filter Google. Thus he began both a legal and publicity campaign arguing that Google must magically filter out the content in question. He's asked by Leveson about how many sites his lawyers have "been able to shut down" and he responds by blaming Google:

It's in the hundreds. My lawyers would probably produce an exact figure. One of the difficulties is that Google have these automatic search machines so if somebody puts something up somewhere, if you Google my name, it will appear. We've been saying to Google, you shouldn't do this, this material is illegal, these pictures have been ruled illegal in the English High Court. They say we're not obliged to police the web and we don't want to police the web, so we have brought proceedings against them in France and Germany where the jurisprudence is favourable. We're also considering bringing proceedings against them in California.

But the fundamental point is that Google could stop this material appearing, but they don't, or they won't as a matter of principle. My position is that if the search engines -- if somebody were to stop the search engines producing the material, the actual sites don't really matter because without a search engine, nobody will find it, it would be just a few friends of the person who posts it. The really dangerous thing are the search engines.

And thus began his legal campaign for mandatory search engine filters to block out content that he doesn't like. Yes, one country, the UK, has ruled that the use of those photos in a newspaper story represented a violation of his privacy, but the photos themselves are out there, and in other parts of the world, we have a belief in the freedom of the press. And in discussing the legality of showing the images, it seems that there is a strong journalistic reason to include at least some examples of the images. For example, Gawker reported on the case and quite reasonably included some of the images, including the following:

While it may have been unfortunate (and upsetting) for the story to get out in the press in the first place, that doesn't change the fact that once the information is out there, it's out there. Resorting to outright censorship as a response is not reasonable, nor would it really help. Attempting to censor such information would only serve to call more attention to it in the first place. While it may be true that the UK allows ridiculous "injunctions" by famous people who don't like being embarrassed by the press, the public is increasingly fed up with such rules. They tend to anger the public, who feels that their own free speech rights are being restricted.

Furthermore, asking search engines (or anyone, really) to create specific filters to pre-block such content raises all sorts of concerns and consequences. Not only would it do little to hide the actual imagery or make people forget the story in the first place, but it sets a horrifying precedent, allowing people to seek to censor legitimate free expression all for the sake of trying to avoid embarrassment.

For example, if the French or German courts decide to force Google to censor access to the images above, then Google wouldn't just be forced to block and censor the images directly, but various stories that include the images too, such as the Gawker stories above. And those stories aren't about the initial "sex party," but rather the legal issues that were raised after the fact. Trying to silence discussion of the legal issues, such as in this article, starts to go deep into very concerning territory when we're talking about the freedom of the press. You can argue that the original article broke some UK rules, but many of the followup articles are important discussions on a topic of public interest, which news organizations need to be free to pursue.

And where do you stop with such filters? If he actually did get filters required on search engines, as with other injunctions on speech, you can imagine discussion and links quickly moving to social networks. So then what? Mosley goes back to court seeking mandatory filters on social networks like Facebook and Twitter? Anyone who links to or posts the images he does't like gets blocked? Add to this other famous rich people demanding similar filtering of stories, images and videos that they, too, find embarrassing, and you're talking about a complete logistical nightmare of censorship.

In addition, such filters present potential monitoring and data privacy issues, as they require extensive monitoring, rather than mere indexing of information. In fact, the European Court of Justice has already ruled that forcing social networks or search engines to set up automatic filters to catch "illegal" content is actually a violation of existing EU law, requiring way too much of companies' "freedom to conduct business", as well as leading to the blocking of perfectly legal communications. In one case, involving a court that had ordered a filter for Netlog, the EU Court of Justice said the unintended consequences were too great:

Accordingly, such an injunction would result in a serious infringement of Netlog’s freedom to conduct its business since it would require Netlog to install a complicated, costly, permanent computer system at its own expense.

Moreover, the effects of that injunction would not be limited to Netlog, as the filtering system may also infringe the fundamental rights of its service users - namely their right to protection of their personal data and their freedom to receive or impart information - which are rights safeguarded by the Charter of Fundamental Rights of the European Union. First, the injunction would involve the identification, systematic analysis and processing of information connected with the profiles created on the social network, that information being protected personal data because, in principle, it allows those users to be identified. Second, that injunction could potentially undermine freedom of information, since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications.

Given that, you would have hoped that the courts in France and Germany would have already rejected these lawsuits, and told Mosley that his comments to the Leveson Inquiry committee remain true: the more he continues to bring this up in court, the more attention he, himself, is calling to the story. Perhaps the best thing to do is to let it go, rather than trying to impose a massive, wasteful, unworkable filtering system that would do little to stop people from knowing the story or seeing the pictures, but would have dangerous unintended consequences that impact free expression and privacy.

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German Court Recognizes That An Internet Connection Is Now Indispensable For Modern Life

Glyn Moody — Fri, 25 Jan 2013 17:37:00 PST

The German Federal Court of Justice in Karlsruhe has acknowledged that an Internet connection is indispensable for life in the modern world, and that being cut off for several months deserves monetary compensation per day for the knock-on losses that inevitably causes:

The plaintiff was erroneously disconnected and demanded that the unnamed telecommunications company pay for costs that incurred in switching to a new provider. The plaintiff also demanded compensation of [about $67] per day for the period his was unable to use his DSL, fax over IP and VoIP services, according to the court.

The Federal Court, however, awarded compensation only for loss of the internet connection. Compensation for the loss of a fax connection was denied because a fax only enables the user to send text and images faster than conventional mail and the technology is increasingly becoming irrelevant due to the rise of alternatives such as email, the court ruled.

The court's reasoning for the award is worth reading for its wide-eyed enthusiasm that is reminiscent of the early days of the Web (original in German): Being able to use the Internet is an economic benefit whose continuous availability, even in the private sector, has for a long time been crucially important for a person's standard of living. The Internet makes available global information in the form of text, image, video and audio files. Thematically, almost all areas are covered and the most varied quality requirements satisfied. For example, light entertainment files are as readily available as information on everyday issues or highly academic subjects. Because of this easy availability, more and more the Internet is replacing other media, such as encyclopedias, magazines or television. It also allows global exchanges between its users, for example via e-mail, forums, blogs and social networks. In addition, it is increasingly used for the initiation and conclusion of contracts, for serving legal instruments and fulfilling public service obligations. The overwhelming majority of people living in Germany use the Internet on a daily basis. As a result, it has developed into a decisively important medium for the lifestyle of a large part of the population, and one whose failure has a significant impact on everyday life.
It's great to see courts in Germany and elsewhere recognizing the central importance of the Internet to modern life -- not least because this necessarily implies that "three strikes"-type punishments that involve disconnection from it are totally disproportionate, and akin to cutting off someone's electricity or water supply for months or more.

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GEMA Vs. YouTube Hits The Three Year Mark As Rate Negotiations Fall Through Again

Tim Cushing — Wed, 16 Jan 2013 20:03:00 PST

It looks like the long-running dispute between GEMA, Germany's brutish performance rights organization, and YouTube isn't ending anytime soon. This licensing battle goes back to 2009, when Google's contract with GEMA ended and the German PRO asked for $0.17 per view, a rate Google claimed was "without comparison in the history of online music." (By comparison. YouTube was paying PRS, the UK performance rights group, $0.0034 per view in 2009.) GEMA countered that it had offered to take $0.01 per stream, but wanted YouTube to cough up more usage data in exchange for the cut rate.

Once this initial negotiation broke down, things went from frosty to litigious.

GEMA went on to sue YouTube in a 2010 test case for distributing copyrighted material without permission — holding it responsible for copyrighted material uploaded by its users. Then in April last year a German court ruled that YouTube must install software filters to prevent users uploading content whose rights GEMA holds.

After a couple of lawsuits, GEMA returned to the "negotiating" table, this time with an offer a bit more in line with reality.

Die Welt reports that GEMA wants the German Patent and Trademark Office to arbitrate on whether its proposed rate of 0.375 cents per stream is appropriate — but YouTube is arguing for a lower rate.

This doesn't really resemble a negotiation at this point. GEMA offers, Google counteroffers and all of a sudden, the home team's PTO is going to decide whether GEMA's preferred rate is "appropriate." But that's not all: GEMA is also suing YouTube to the tune (pun really not intended) of €1.6 million for the alleged unlicensed use of 1,000 songs from its catalog.

Not only that, but another German court is in the process of defining YouTube's role on the web, something that could potentially see YouTube remove itself entirely from Germany.

A Hamburg court is already arbitrating another row between GEMA and YouTube over how the platform should be defined. GEMA claims that YouTube is a content provider whose business model is built on content that is subject to royalties. YouTube, on the other hand, says it is a hosting service which simply makes space available to its users.

The push here is to remove any sort of "safe harbor" (such as it exists in German law) and hold YouTube entirely responsible for anything uploaded by its users. Framing YouTube as a content provider puts it right in the legal crosshairs, which is where GEMA wants it. Despite the efforts made by YouTube to curtail infringement, GEMA still wants to see it pay more.

Of course, GEMA's doing this "for the artists." And those artists must be thrilled, what with the world's most popular video streaming site serving up this message, rather than actual videos, all too frequently.

And wouldn't you know it, GEMA also has a problem with the message posted by YouTube, which has become visual shorthand for the German YouTube Experience.

GEMA is demanding that YouTube take down the on-screen notice blocking music videos in Germany that blames GEMA for the impasse. In November last year, GEMA head Harald Heker accused YouTube of deliberately misleading German users with the notice.

"The notice about GEMA is being posted wilfully, purely to stir opinion," he told WirtschaftsWoche magazine at the time. "YouTube is trying to awaken the false impression that the failure to license is GEMA's responsibility. That is simply wrong."

This sounds familiar. Those blocking or taking down videos for various violations seem to think that YouTube should keep them free from criticism, too. Considering YouTube has already negotiated licenses with various other PROs, including ASCAP and the infamous PRS, it certainly seems likely that GEMA's contentious relationship with, well, just about everyone, might have something to do with the "failure to license." GEMA can complain about the "impression" this message makes, but if it were solely up to Google, German citizens wouldn't be seeing this message at all. Here's Google's statement:

YouTube believes that rights holders and artists should benefit from their work. We have dozens of collection society deals in place across more than 45 countries because we provide an important source of income for musicians and a platform where new artists can be discovered and promoted. Music labels are generating hundreds of millions of dollars on YouTube every year. Artists, composers, authors, publishers, and record labels in Germany are missing this opportunity as a result of GEMA’s decisions. We remain committed to finding a solution with GEMA compatible with YouTube’s business model so that we can again provide a source of revenue for musicians and a vibrant platform for music lovers in Germany.

That's the crux of the situation. The artists, composers, etc. aren't just missing these opportunities -- they're not even being allowed to have these opportunities, thanks to GEMA's insistence on combative, hardline tactics. GEMA hasn't done much for the artists it "represents," but it's doing a great job turning Germany into a cultural island.

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Kraftwerk's 12-Year Lawsuit Over A 2-Second Sample Comes To A Bizarre End

Tim Cushing — Fri, 21 Dec 2012 18:35:00 PST

As we all know, not only is Germany the land of chocolate, it's also the land of effed-up IP laws. And this case under discussion here is severely effed-up, not to mention long-running. This is a 12-year (and counting) battle waged over a 2-second rhythmic sample.

Back in 1977, Kraftwerk released a track called "Metall auf Metall" that contained a rather distinctive bit of percussion that ran the length of the track. Twenty years later, a German rapper called Sabrina Setlur recorded a single called "Nur Mir," which featured a two-second loop of Kraftwerk's percussion. In 2000, Kraftwerk took producers Pelham and Haas to court (specifically, Hamburg's lower civil court) for using an uncleared sample.

For the next eight years, the case bounced between courts before landing in Germany's highest civil court (BGH), which initially ruled against Kraftwerk, stating that "sampling musical notes does not, in principle, violate copyright." This overturned a decision by Hamburg's lower court, which stated the opposite: that re-purposing even the smallest sample of a song counted as copyright infringement. It had also issued an injunction against Pelham and Haas, the producers of "Nur Mir," forbidding further distribution of the offending single.

BGH's 2008 decision, while making sampling possible again, laid down some restrictions, preventing some sort of sampling land rush for occurring.

The key to the German higher court ruling is that sampling a melody does constitute infringement, but a couple of notes taken from a previous recording used in such a way as the original melody is not identifiable – which was arguably the case in "Nur Mir" – does not.

It also required that the sample "be part of a completely new musical work bearing no resemblance to the original," heading off any sort of Vanilla Ice-esque developments.

So, despite the highest civil court in Germany ruling that "Nur Mir" didn't infringe, the case was kicked back down a level to Hamburg's highest regional court (OLG) in order to test the extent of Germany's equivalent to fair use. In August 2011, OLG returned a decision agreeing with the BGH's findings, but allowed Kraftwerk to appeal this decision as the court was unsure it had reached the right decision.

The regional court did, however, make a couple of statements, along with setting up one of the stranger demonstrative tests ever deployed in a courtroom setting. The first statement indicated that the court felt "Nur Mir" was sufficiently transformative, even if it contained a recognizable sample.

In any case, the OLG found that "Nur Mir" possessed an entirely different character from"Metall auf Metall," even though the rhythm sequence was clearly audible throughout the track. Making allowances for the hip hop genre, the judges stated that it would be asking too much if one were to demand a rhythmic figure in a hip hop track to fade to the background in such a way as to be barely recognisable. The additional elements were deemed enough to turn "Nur Mir" into an independent work according to § 24 (1) UrhG.

The second statement was a bit more troubling, raising questions on how exactly someone would determine a sample to be infringing, putting the weight of that decision on the hypothetical customer.

According to the OLG, it is not necessary that the sound be identical, but that it would be regarded as equivalent by prospective consumers that are familiar with and possess a certain amount of sensitivity for musical issues without being extraordinarily exacting.

A worrisome baseline to set, especially when declaring "Nur Mir" to be non-infringing. This puts the determination in the hands of the proverbial "moron in a hurry," only a moron with a decent sized record collection.

Then it gets seriously weird. Despite finding the disputed track to be non-infringing because it was sufficiently transformative, the court started asking itself questions about whether the sampling should be permitted at all without clearance, especially if the sample could be reproduced with the technology in use at the time (1997). Since the highest court had issued no guidance on the subject before kicking it downstairs, the OLG came up with its own idea, which was implemented and then re-demonstrated once the case returned to the BGH (which is erroneously referred to as the "Supreme Court" in the article). The court found in favor of Kraftwerk... and key evidence was provided by expert witnesses banging on pieces of metal and feeding them through a 1996 Akai sampler.

The question at the heart of the case is how far sampling the work of other artists—a mainstay of modern hip-hop and techno—is permissible when creating new music. The answer given by the Supreme Court is that it is only permissible if the same effect could not have been produced by the new artist himself. After various demonstrations by expert witnesses, crashing metal on metal and using instruments such as a 1996 Akai Sampler, it was shown that an imitation of the sound-bite would have been possible in 1997. Hence, on December 13th, it ruled in favour of Kraftwerk.

So, at this point, here's what we have.

Hamburg lower court declares that uncleared sampling is not permissible ever.
Hamburg higher court declares that melody lines cannot be sampled but rhythmic samples are OK, with several caveats.
Germany's highest civil court declares sampling is OK only if the sample cannot be reproduced with existing technology, discarding transformative use altogether.

Is this is just the court's way ultra-weird way of telling would-be samplers to "make original music?" The BGH, for unclear reasons, stripped away OLG's definition of "independent work," and handed down a severely broken ruling that pretty much eliminates sampling as an option for producers. Ruling in favor of Kraftwerk and setting this bizarre precedent completely clouds the water on sampling and insinuates that a rapper utilizing a 2-second sample on single released 20 years after the original somehow makes these two tracks (and artists) interchangeable in the customers' minds, thus damaging the market for the original artist. "Oh, I was going to buy some Kraftwerk but this rap single will do."

Then there's the conundrum this decision presents: the only way for the customer (or plaintiff) to decide whether a track has an "equivalent sound" (and thus, infringing) is after the track is released. The lawyer for Pelham and Haas poses this question.

How can you be sure that the artist has succeeded before the work has been released to the consumer?

Indeed. This creates a considerable chilling effect, one that not only discourages sampling, but eliminates transformative use from the equation by disregarding OLG's statement that "Nur Mir" was an "independent work," despite its recognizable sample. Anything that sounds like anything else can trigger a copyright infringement suit, whether or not an actual sample was used. Restricting sampling to "unreproducible sounds" leaves artists with little but God's voice and the weird noises animals make when they're happy as the only permissible sampling material.

Pelham and Haas are looking to bring this case to Germany's constitutional court (the actual Supreme Court), stating that this decision might violate article five of the constitution, which grants the right for art to be "informed without hindrance from accessible sources." Hopefully, they'll succeed. If nothing else, the laws regarding sampling as they stand now are completely unusable and cobbled together from bits and pieces of a lawsuit that has dragged on far too long over way too little.

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GEMA Feels It Isn't Killing German Nightclubs Fast Enough, Moves Towards Charging DJs Per MP3 On Their Laptops

Tim Cushing — Tue, 4 Dec 2012 10:57:00 PST

GEMA's ongoing efforts to destroy as many music venues as possible in the name of "performance rights" continue unabated. If anything, GEMA's approaching some sort of event horizon in terms of PRO insanity.

Recently, GEMA was given permission by the German parliament to assess levy increases of up to 1,400% on some of Germany's most iconic underground clubs, threatening their continued existence. The reason given for granting GEMA its exorbitant requests was, unbelievably, that it was too difficult to assess performance rights fees accurately. GEMA's new "simplified" rates are based purely on the size of the venue and the length of the event -- it has nothing to do with whether or not GEMA represents the artists played.

There has been a little pushback on the extra fee assessed to events that run more than five hours -- as they often do in underground clubs -- but GEMA has decided that because it gave an inch, it's fully justified in taking a mile. FACT Magazine brings us the news that GEMA is adding a brand new fee to the mix, bizarrely aimed at DJs who utilize laptops and play MP3s rather than records or CDs.

It now appears that GEMA are attempting to knuckle down even harder on club performances. So far this has only – to our knowledge – been reported on German language websites, but at the heart of these newly proposed set of changes is a tax (or “laptop surcharge”) on DJs playing music from laptops, to the tune of 30% for every music file under five minutes with an increase of 20% for each additional minute. What we’re unsure about is whether this only refers to files that are played, or all music on the offending laptop – we’d presume the former, but the post on Tanith implies the latter (“e.g. 10,000 mp3s on the DJ laptop would [require] 1,300 Euros”).

The gist of it, as far as can be made out via Chrome translation, is that venues will pay an additional 30% surcharge on top of the already jacked-up fees if the featured artist uses a laptop. This fee can be waived, however, in exchange for a per track levy. According to the Tanithblog, GEMA is charging a "duplication" fee for each MP3. MP3s under five minutes in length are assessed a 13-cent per track fee. Each additional minute brings with it a 20% increase in price.

It's unclear at this point whether GEMA is assessing this fee for each track played or each track on the hard drive. Considering its "difficulty" with accurately tracking music played, I would assume GEMA will opt for a levy on the contents of the drive, which will be less "onerous" and result in larger fee assessments. If this new fee is levied only on the tracks actually played, this means GEMA has access to actual tracks used during the event, and therefore should charge only for covered artists. But GEMA won't do that. Instead, it will go for whichever fee is larger and easier to assess. Considering 10,000 tracks is probably "traveling light" for any respected club DJ, a 1,300 Euro assessment is probably on the low end.

This is stupid, short-sighted and completely GEMA-like, the last of which is probably the greatest insult of all. Supposedly, this additional "laptop surcharge" was negotiated by representatives of the nightclub industry itself, giving the appearance that GEMA is actually working with club owners to work out mutually beneficial licensing. FACT points out that, in fact, this is just business as usual for the PRO megathug. (The info sheet from DDU and DDO is available here.)

The proposal has reportedly been negotiated with the German Discotheques and Nightclubs unions (DDU and DDO). Dean Driscoll, of German-based promotions company Tailored Communication, explained on Twitter this morning that these unions are “sub-branches of GEMA populated solely by GEMA members.”

It's a rigged game, with GEMA selling out the artists it represents by systematically running venues into the ground. This latest fee is another example of its outsized sense of entitlement and zealous pursuit of every possible revenue stream. The audacity of leveraging a new fee simply because of the technology involved has nothing to do with helping its artists and everything to do with cutting itself in on the ongoing migration of DJs to laptop-driven live sets.

As some commenters at FACT point out, this sort of per-MP3 fee has already been deployed in Hungary and Poland, so it's not the first time DJs have been charged for the contents of their laptops. Another commenter notes that Hungary's version is a per file fee, so if GEMA follows suit, DJs will be charged for every music file on their hard drive (unplayed or not) along with files on removable drives and burned CDs. There's no indication that the PROs assessing this MP3 surcharge have any interest in determining if the tracks they're collecting on are actually under their purview.

In the real world, this is called running a protection racket. Out in the PRO world, it's just business as usual.

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German Chancellor Says Only Print Media Can Teach You 'Real' Reading

Glyn Moody — Thu, 29 Nov 2012 03:40:53 PST

Angela Merkel may be Germany's Chancellor, and therefore a busy woman, but since she trained as a chemist , you might expect her to have a more positive view about new technology than this statement from a recent interview (original video in German), reported by the Netzpolitik blog, would suggest:

I regard the print media as very important. Being able to read is quite another thing from being on the Internet -- something that naturally will grow, and increase in importance. Nonetheless, the ability to read is something very, very important. And therefore I hope that, alongside the strong development of all the new media, all the well-known newspapers, the print media, the magazines, have a good future.

What's strange here is that the vast majority of those newspapers and magazines publish all or most of their articles online as well as in printed versions. The words are identical, so what magic ingredient does Frau Merkel think is missing online? It can't be the readability, since digital versions are arguably more legible, thanks to the ability to change the print size for those whose eyesight is not what it was.

The only real difference is that online versions are insubstantial, simply an image on a screen, while printed versions consist of ink on paper. Maybe her comment does, in fact, reflect her past as a chemist, and what she secretly misses is that characteristic odor of printing inks. Perhaps she just needs a iSmell Personal Scent Synthesizer device or equivalent.

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German Court Holds Internet User Responsible For Passing On Unknown, Encrypted File

Glyn Moody — Wed, 28 Nov 2012 10:33:00 PST

A natural response to the increasingly harsh enforcement of laws against unauthorized sharing of copyright files is to move to encrypted connections. It seems like a perfect solution: nobody can eavesdrop, and so nobody can find out what you are sharing. But as TorrentFreak reports, a German court has just dealt a blow to this approach.

The case involves RetroShare, which describes itself thus:

RetroShare is a Open Source cross-platform, Friend-2-Friend and secure decentralised communication platform.

It lets you to securely chat and share files with your friends and family, using a web-of-trust to authenticate peers and OpenSSL to encrypt all communication. RetroShare provides filesharing, chat, messages, forums and channels

That sounds pretty safe, but TorrentFreak explains why it wasn't in the current case: This week a Hamburg court ruled against a RetroShare user who passed on an encrypted transfer that turned out to be a copyrighted music file. The user in question was not aware of the transfer, and merely passed on the data in a way similar to how TOR works.

The court, however, ruled that the user in question, who was identified by the copyright holder, is responsible for passing on the encrypted song.

The judge ordered an injunction against the RetroShare user, who is now forbidden from transferring the song with a maximum penalty of €250,000 or a six month prison term. Since RetroShare traffic is encrypted this means that the user can no longer use the network without being at risk.
That's because the user can't know what's in an encrypted file passing through his or her system, and thus cannot guarantee that it is not the song in question. In truth, this situation is partly the user's own fault: RetroShare derives its security from the fact that all transfers go through "trusted friends" who users themselves add. In this case, the defendant added the anti-piracy monitoring company as a friend, which allowed him to be "caught."
But even if the court case in Hamburg is a result of fairly exceptional circumstances, it creates an awful precedent: that German users are responsible for encrypted contents passing through their connection, even though there is no way they can know what they might contain. Unfortunately, this is of a piece with a previous ruling by a German court that people can be fined for what others do with their open wifi connections, regardless of whether they knew what was going on.

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Google Asks Germans To Protest 'Pay To Link' Proposal As It Comes Close To Becoming Law

Mike Masnick — Wed, 28 Nov 2012 03:26:34 PST

For a few years now, we've been following attempts in Germany -- mainly driven by newspaper publishers -- to create a bizarre new copyright-like right (specifically a "neighbor right") in "linking" such that a site like Google would have to pay sites that it links to. The bizarre and nonsensical argument is that because a site like Google makes some of its money by linking to sites, those sites "deserve" part of the money. This is problematic for a long list of reasons, not the least of which is it's fundamentally backwards economically. If sites like Google are making money from directing people to other sites, they're making money because they provide a valuable service in helping people find the content, not because of the content itself. It's up to the sites themselves to figure out how to monetize the traffic -- not to run to the government to force others to pay. And, if you think this is just a Google issue, you're wrong. Among the proposals was one that would impact many others, including people posting links on blogs, Facebook, Twitter and other sites.

The final proposal would be wide reaching in impact, and make it ridiculous to run a search engine or any kind of aggregator in Germany:

The new section, if introduced, would provide the "producer of news materials" the general "exclusive right to make said materials publicly available, in whole or in part, for commercial purposes," according to an unofficial translation of the German Government's proposals.

Others would be permitted to provide "public access" to the publishers' material unless those providing that access are "commercial operators of search engines or commercial providers of services that aggregate this content in a respective fashion". News publishers' right to control the commercial exploitation of their work in this regard would extend for a year after publication. Authors of the work would be entitled to be "provided with a reasonable share of the remunerations issuing from the author’s work".

The German government is set to take up the issue on Thursday and Google has realized that maybe it should let folks in Germany know that this proposal would seriously cut into their internet services. As Google accurately notes, if the law passes it will mean "higher costs, less information and massive legal uncertainty." That's what happens when you insist that content providers who fail to monetize traffic somehow "deserve" money from a third party that is helping people find them.

The logic behind this bill makes no sense. Do we require that GPS service providers pay stores for directing people to where they're located? Of course not. The very concept is ludicrous. Yet that's exactly what this bill is doing in Germany.

Most ridiculous of all: if publishers don't like being in Google's results, they can already opt-out. So if this was really "piracy" as the publishers claim, they have a solution already at their disposal. But this isn't about piracy at all, of course. It's about publishers who haven't been able to adapt seeing Google make lots of money and getting jealous. So they're demanding a cut of the money. It's a sad statement on the nature of both publishers and German copyright law that this proposal is even being seriously considered.

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Recording Industry Rep Suggests Parents Should Slap Their Children To Stop Piracy

Glyn Moody — Fri, 16 Nov 2012 12:35:00 PST

One of the many problems with the "guilty until proven innocent" approach to tackling unauthorized filesharing is that it's not clear exactly who should get the punishment. For example, in France, we saw someone convicted not for infringement that he had committed, but something his then-wife had done and even admitted. And it's not just spousal activity that is problematic, as TorrentFreak reports in this interesting case from Germany:

A ruling handed down yesterday by Germany's highest court represents a blow to rightsholders in their quest to clamp down on illicit file-sharing. The court ruled that the parents of a teenager who had made available more than 1,100 songs on file-sharing networks can not be held responsible for their son's infringements, nor be required to monitor or hinder his online activities.

What's particularly interesting here is that Germany's top court not only threw out the original fine, but did so without imposing any unreasonable conditions on the parents, for example by requiring them to spy on their child: The Court ruled that the parents had met their parental obligations when they informed their child of "basic do's and don'ts" including that file-sharing copyrighted content online is illegal.

Furthermore, the Court ruled that the parents were not required to monitor their child's online activities nor install special software to restrict his online behavior. This would only be required should the parents have "reasonable grounds" to presume that their child would engage in infringing activities online.
Of course, not everyone was happy with this result, which could have major implications for imposing fines in Germany, since it seems likely that much unauthorized file sharing there as elsewhere is carried out by teenagers in their family homes. The Netzpolitik.org blog pointed us to an interesting comment made by a representative of the music industry (original in German): The case shines "a harsh light" on the fact that, for many parents, the concept of upbringing has become a foreign word, the legal representative of the music industry complained, according to the AFP news agency at the hearing before the federal court in Karlsruhe. While before "an occasional slap didn't hurt", today children are kept on a loose leash.
This hankering after the good old days when parents could hit children to cow them into submission is hardly surprising: it's the physical equivalent of the disproportionate legal punishment the music industry would like to see meted out to all those caught doing naughty things online like sharing files without permission.

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German Court Sees Through The DOJ Fairy Tale, Rejects Attempt To Seize Megaupload Assets

Mike Masnick — Wed, 14 Nov 2012 11:45:00 PST

We've covered a series of embarrassing setbacks for the US government's case against Megaupload over the past few months. It's a pretty stunning trail of errors by US officials who seemed to think that a scary story about a "bad man" would trump a lack of actual evidence or following legal procedure. While the case may hold up in the long run, it seems like everywhere you look there's evidence of highly questionable activity by the government.

The latest setback comes from Germany, where the US sought assistance from officials in seizing various assets of Dotcom's or Megauploads. However, the court has now rejected the request:

The Frankfurt judges have since rejected this request, because it contains insufficient evidence. The US legal team failed to demonstrate that a web hosting service for the illegal upload of copyrighted files, amounts to a criminal offence.

According to the German 'Telemediengesetz' (communications legislation), a hosting service for foreign files will generally not be accountable unless the host had active knowledge of illegal activity. The judges also emphasised that the concept of knowledge is limited to positive knowledge. Therefore if the service provider believes that it is possible or likely that a specific piece of information is stored on their server, this is not sufficient evidence of knowledge of abuse.

According to the court ruling, there is no legal obligation to monitor the transmitted data or stored information or to search for any illegal activity.

Of course this was the same point that we raised the day that Megaupload was shut down. While it may be true that many Megaupload users have infringed on copyrights, there's a massive leap from that point to the idea that Megaupload is a criminal enterprise -- yet the US government's case basically skips over any details to make that leap. Thankfully cooler heads are recognizing that a significant amount of the US's case seems to be based on a fairy tale that US officials -- under the influence of Hollywood -- keep telling.

Tip to DOJ officials under the sway of Hollywood's version of the internet: remember, these people make their livings telling fairy tale stories. You know those opening credit lines about how something is "based on a true story"? Yeah, quite frequently the actual truth is a long way from what's shown. It seems that you may have been taken in by another such Hollywood "true" tale.

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GEMA Gets Bailed Out By Germany's Parliament; Allowed To Proceed With Venue-Killing Rate Hikes

Tim Cushing — Fri, 9 Nov 2012 05:35:55 PST

The threat posed to Germany's underground club scene by all-around IP thug GEMA is no longer just a threat. Back in July, GEMA decided to "streamline" its convoluted fee structure. Naturally, it decided to smooth things over in a upward motion, raising the fees charged to these clubs by up to 1,400%. This sparked protests against GEMA's tactics and a petition with 60,000 signatures was brought to the Deutsches Bundestag (Germany's parliament). Unfortunately, the Deutsches Bundestag punted, suggesting those unhappy with the new fee structure negotiate directly with GEMA. [However you spell "LOL" in German goes here.]

The petition itself deployed an interesting tactic, targeting the legality of the "GEMA presumption."

The petition, which began circulating in August, specifically protested the so-called "GEMA presumption," i.e. GEMA's method of deciding tariffs for clubs and festivals based on the assumption that they own rights to 100% of the music being played there. The reasoning behind this is that it would be too difficult to sort out which tracks were or weren't written by GEMA members. This method is part of what allows GEMA to decide their tariffs based purely on the amount of space in a venue and the duration of its events, without necessarily knowing what music was played.

Not much of a "method," is it? It's exactly what the protestors call it: "presumption." Rather than make any attempt to even make a ballpark guess at the percentage of music GEMA might actually be able to collect on, GEMA has bullied its way to a supremely privileged position that allows it to claim tariffs on 100% of any music played in nearly any venue. The duration of the events works against the underground clubs as well, as their extended hours drastically increase the fees GEMA collects.

The audacity of this claim (and the unwillingness to do any legwork) is astounding. Whatever hold GEMA has over the government, and by extension, Germany's music consumption, far surpasses the power of other PROs, labels and IP groups around the world.

Resident Advisor points out that this isn't the first time GEMA's "presumption" has been challenged.

The GEMA presumption has been contested before. One study by Berlin's Club Commission sampled everything that was played at Berlin clubs like Watergate and Weekend over one weekend, and found that as many as 35% of the records played were unknown to GEMA...

While GEMA could still claim that its artists provide a larger share of the records played in these clubs, it's still a long walk from 65% to 100%, that latter percentage being what determines the fees assessed. Unfortunately, the Bundestag sided with GEMA in this earlier action, stating that any alternative would be "too cumbersome" for the PRO to utilize for its collection efforts.

This second concession to GEMA by the Bundestag effectively allows GEMA to set rates with impunity and frees it from having to determine actual music usage. In addition to granting GEMA even more power, it likely dooms several iconic Berlin clubs to extinction, thanks to rate increases that reflect only GEMA's self-serving "streamlining" rather than the actual music played or the clubs' actual income.

Organizations like GEMA are supposedly "protecting artists" by imposing these fees. There's some "protection" going on here, but it's got nothing to do with art.

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German Company Wants To Protect Its Use Of The '@' Sign: What Could Possibly Go Wrong?

Glyn Moody — Fri, 2 Nov 2012 12:44:43 PDT

A little while back, Techdirt wrote about a rather brave French company that tried to trademark the Anonymous logo. Now Der Spiegel is reporting that someone wants a German "wordmark" on the "@" sign (original in German). The company involved has the rather unusual name "@ T.E.L.L.", where the initials apparently stand for "Tradinghouse for Exclusive Luxury Labels". Although it's not really clear what the connection is, it is seeking to protect its use of the @-symbol for various classes of luxury goods (application in German), including the following:

shoes, hats, belts, fish, dried fruit, eggs, milk, coffee, tea, tapioca, bread, sugar, honey, syrups, alcoholic beverages (excluding beer), cigarettes, cigars, cigarette lighters and ashtrays

Despite this limitation to certain luxury items, and despite a press release (pdf in German) emphasizing that the company has no intention of sending out warning letters to people using the @-sign in their email addresses, you do have to wonder how wise it is to hand out control, no matter how circumscribed, over something so fundamental to the working of the modern world.

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