German Court Decisions Make Everyday Use Of The Internet Increasingly Risky There

from the but-safer-for-dinosaurs dept

Perhaps there's something about the German legal system that encourages judges to push their interpretation of the law to the limit, without any concern for whether the results of that logic are absurd. At least that is the impression you might get from two recent cases whose judgments both make use of the internet by ordinary citizens increasing fraught with legal risks.

The first involved a retired woman who was accused of downloading a violent film about hooligans. That in itself seems slightly unlikely, but nothing compared with the fact that at the time of the alleged download, the woman in question had neither computer nor wireless router, and lived alone.

Given that, you might think this was a cut-and-dried case of a mistake being made by the tracking company or ISP, since it was not physically possible for the IP address that had been assigned to her in a previous period (when she did have a computer and was online) to be used by her.

But the German judge in Munich was having none of it. As TorrentFreak reports:

The bottom line in Germany is that account holders are responsible for everything that happens on their account and if they canít prove their innocence, they are found guilty. The woman must now pay just over 650 euros in damages to the copyright holder.
That seems an extraordinary approach, since it requires the accused to prove that something didn't happen. And if the absence of computer and wireless router isn't enough to do that, what is?

The other court case extends this extremist interpretation of copyright law to include streaming. A judge in Leipzig has ruled that even the temporary downloading involved in streaming counts as making a copy, because data packets are downloaded successively. If the material on the server is an unauthorized copy, then so is the streamed version, and the person viewing it is breaking the law (German original).

The trouble with this interpretation is that often it is not clear whether material held on a server is infringing on someone else's copyright Ė even for lawyers, never mind for members of the public.

So what will be the inevitable effect of this uncompromising viewpoint, if it is confirmed and enforced across Germany? Practically every site holding user-generated content will be forced to remove it or shut down completely there, since few general users will take the risk of downloading or streaming unknown materials that may be unauthorized, and that would immediately turn them into criminals. And that includes major sites like YouTube or top German startup Soundcloud, and possibly even Facebook, which might need to block all videos.

These extremist interpretations of copyright law threaten to have a chilling effect not just on online innovation in Germany -- who would risk setting up an internet company that involved any kind of user-generated content there? -- but beyond, into everyday life. It would make the use of the internet for anything other than as a medium for watching "approved" channels of "approved" content too much of a risk for much of the general population. Which, of course, is exactly what the copyright industries are striving for: a tamed, neutered Net.

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Reader Comments (rss)

(Flattened / Threaded)

  •  
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    crade (profile), Jan 4th, 2012 @ 9:22am

    Lol, make people responsible for things they have no control over or even influence on. Brilliant. Someone stole gas from your car and used it to light a house on fire? Well, we better get you off the street and in jail so people can't take your gas! Your ISP have bad security? Some hacker breaking into your account and commiting crimes? We better get you punished! We should probably also make you send an apology letter to the hacker for making them commit those crimes and maybe some money to make up for it.

     

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      identicon
      Anonymous Coward, Jan 4th, 2012 @ 10:02am

      Re:

      No, even better... Somebody created an account with your information and you didn't know about it? Well, shame on you and off to the clink with ya then.

       

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    Christopher Weigel (profile), Jan 4th, 2012 @ 10:07am

    Wouldn't Facebook have to shut down completely, for fear that someone violate an author's copyright by posting a quote?

     

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      identicon
      Anonymous Coward, Jan 4th, 2012 @ 1:10pm

      Re:

      Quoting is protected by the Berne Convention and probably national copyright laws in Germany as well.

       

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      •  
        identicon
        Anonymous Coward, Jan 4th, 2012 @ 1:26pm

        Re: Re:

        Are you willing to take the risk that that won't change and that you won't be put in jail for it?

         

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        identicon
        Anonymous Coward, Jan 4th, 2012 @ 2:07pm

        Re: Re:

        But it appears that quoting is not protected if the quote comes from a pirated copy since the act of glancing at the unlicensed material makes you a criminal.

         

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    identicon
    John Doe, Jan 4th, 2012 @ 10:14am

    With laws like that, who needs SOPA?

    This is even better than SOPA, they can fine people and/or lock them up for not even having a computer or internet service.

     

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    Ninja (profile), Jan 4th, 2012 @ 10:17am

    Well, they do dare to say they are green and are walking away of nuclear energy while they import a good chunk of electricity from France (80+% of their matrix is nuclear).

    Guilty until proven innocent. Are we flirting with fascism again, Germany?

     

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      John Doe, Jan 4th, 2012 @ 10:19am

      Re:

      Flirting? I would say they are engaged.

       

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      ChrisB (profile), Jan 4th, 2012 @ 10:50am

      Re:

      Nuclear is green. Nuclear causes no greenhouse gas emission, and is the only practical replacement for coal-fired electrical generation plants. Sure, spent rods are radioactive, but wouldn't you prefer the byproduct of electricity generation to be all in one place, rather than soot and pollution spread finely all over the place?

      Anyone who is against nuclear and claims to be green is an delusional.

       

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        identicon
        John Doe, Jan 4th, 2012 @ 10:55am

        Re: Re:

        but wouldn't you prefer the byproduct of electricity generation to be all in one place

        Where would you store them, Fukushima? I was very pro-nuclear until the disaster in Japan. Yea, they made serious errors in placing the plant, but as long as man is involved, the chance for serious error is high.

         

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        Bengie, Jan 4th, 2012 @ 11:29am

        Re: Re:

        The biggest issue is the lack of quality they put into nuclear reactors. They need the more expensive designs to be "safe"

        But yes, nuclear is quite safe when implemented correctly.

         

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    Matthew (profile), Jan 4th, 2012 @ 10:20am

    It gets better...

    Those packets probably passed through a lot of different nodes on their way to the viewer, so all those node operators should be held responsible for infringement as well.

    It's obvious. The only way to save the copyright holders is to kill the internet. Unplug before you accidentintentionally commit more thought crime.

     

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      Chronno S. Trigger (profile), Jan 4th, 2012 @ 10:25am

      Re: It gets better...

      "It's obvious. The only way to save the copyright holders is to kill the internet."

      "Never attribute to malice that which is adequately explained by stupidity"

      At this point, stupidity cannot apply. I think their intent is to kill the Internet.

       

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    Ima Fish (profile), Jan 4th, 2012 @ 10:23am

    "account holders are responsible for everything that happens on their account"

    I'd considering agreeing with this if we actually obtained registered IP addresses.

    Think of it this way, if you're the registered owner of a vehicle, and it's involved in an accident, you're at least partially liable. The only exception is if your vehicle is stolen. In a nutshell, it's your car and you'd better be careful about who you let drive it.

    But that's not what is happening here. First, the lady was not assigned a specific IP address. She signed up for internet service. And second, even if she did sign up for a specific IP address, she relinquished the address when she dropped the service.

    This ruling is beyond asinine. It simply allows the copyright monopolies to pick IP addresses at random and collect money.

     

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      Anonymous Coward, Jan 4th, 2012 @ 10:58am

      Re:

      "This ruling is beyond asinine. It simply allows the copyright monopolies to pick IP addresses at random and collect money."

      In other words, this is exactly what they want/expect/are demanding to happen when SOPA passes....

      How long before the SOPA amendment that requires Payment Providers to 'divert' funds to the 'rightful owners' of the copyrighted material (or perhaps it's already buried in there in so much leagleze that it just hasn't been spotted)....

      I mean it's one thing to be able to kick your competition in the nuts when they aren't paying attention, it's even better to say, "Look over there, your payment provider is sending me all your funds." then kick em in the nuts....

      ALL YOUR RECEIPTS ARE BELONG TO US (**US means MPAA/RIAA and all the other groups of Ass Hats....)

       

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      crade (profile), Jan 4th, 2012 @ 12:02pm

      Re:

      The only reason this works in any way for cars is because only one person can use your car at a time so you know that your car is stolen and someone is using your car without your permission. When people use your IP without your permission, you most likely will have no clue and nothing to report unless you happen to work in the field and are monitoring it yourself and get lucky or something.

       

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      btr1701, Jan 4th, 2012 @ 2:20pm

      Re:

      > Think of it this way, if you're the registered
      > owner of a vehicle, and it's involved in an
      > accident, you're at least partially liable

      Umm.. no you're not. If you let your next-door neighbor borrow your truck and he runs a red light in it and smashes into someone, he's liable. You're not.

      If you've got deeper pockets than he does, some lawyer might *try* and hold you liable, but nothing in either civil tort law or the traffic vehicle code would actually impose legal liability on you for the actions of someone else.

       

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        Anonymous Coward, Jan 4th, 2012 @ 2:33pm

        Re: Re:

        Do not discount that in some cases lending your auto to another party may be grounds for negligence on your part.

         

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      CN, Jan 4th, 2012 @ 3:35pm

      Car analogy

      If we're going with a car analogy, it's more like this:

      You sell your car. The new owned uses it as a getaway car in a bank robbery. You go to jail.

      Alternatively, you sell your house and move out, yet apparently you are still responsible for whatever goes on in that house.

       

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    Jeremy2020 (profile), Jan 4th, 2012 @ 10:41am

    The intent has always been to kill the internet. Free Speech is great until you can't control it anymore.

     

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    Anonymous Coward, Jan 4th, 2012 @ 11:03am

    I have to question the wisdom of such declarative statements without there being in hand an accurate summary of all salient facts associated with these cases.

     

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      Anonymous Coward, Jan 4th, 2012 @ 12:29pm

      Re:

      Accurate summary of salient facts.
      Old woman accused of piracy.
      IP was once used by her.
      But at the time of the alleged piracy, she had relinquished the IP...and didn't even have a computer!
      Judge found her guilty, anyway.

      We question the wisdom of your questioning the facts as stated, boy.

       

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        identicon
        Anonymous Coward, Jan 4th, 2012 @ 1:15pm

        Re: Re:

        "But at the time of the alleged piracy, she had relinquished the IP..."

        One of several relevant facts that is not contained in the linked article. Hence, the reason for my comment.

         

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          WysiWyg (profile), Jan 4th, 2012 @ 11:51pm

          Re: Re: Re:

          What does it matter? So what if the IP-address was "assigned" to her, since she didn't have a computer or a router, how could she have been the one that did the pirating (if it did happen at all)?

           

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      PaulT (profile), Jan 5th, 2012 @ 2:59am

      Re:

      I love it. Even where it appears to be a clear-cut case of there being a mistake being made, someone has to white knight. No facts to counter what's being said, just "I don't like it, so I won't accept it".

      The facts here unless they're disproven: a woman had an ISP contract included in her phone package, then later sold any equipment that was capable of accessing the internet. As far as she was concerned, nobody was accessing the internet from her account. Without her knowledge, the connection gets used by a 3rd party and used to infringe copyright.

      Rather than go after the person guilty of infringement (who appear to yet be identified), the woman who could not have committed the action has to pay excessive fines. The only defence available to her is to either prove a negative (which is impossible) or to do the work of the police and track down the actual culprit for them at great personal expense (and may also be impossible). The pirate goes scot free, and has nothing to stop him doing the same again.

      In other words, it's the situation most of us warn about when discussing SOPA and 3 strikes laws, which tends to get dismissed as paranoid by pro-IP shills. Maybe it's about time people accepted there are real problems with these laws, rather than try to deflect blame on to the victim? Maybe if the pro-industry people stopped supporting such blatant cash grabs from innocent people, we'd be more sympathetic.

       

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        abc gum, Jan 5th, 2012 @ 5:41am

        Re: Re:

        This could be the plot to a new tv series called The Infringer.

        A one armed pirate commits copyright infringement using the account of a retired woman. She is convicted because Judge Dredd proclaims account holders are responsible for everything that happens on their account and if they canít prove their innocence, they are found guilty. She then vows to find the real infringer leading to one adventure after another. Bonus points if the pirate has an eye patch and a parrot.

         

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    Andrew (profile), Jan 4th, 2012 @ 11:46am

    It would make the use of the Internet for anything other than as a medium for watching "approved" channels of "approved" content too much of a risk for much of the general population.

    Though even that may not always be enough to prevent a lawsuit.

     

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    Anonymous Coward, Jan 4th, 2012 @ 12:03pm

    Of course the absence of a computer isn't enough proof that the lady isn't guilty of pirating! For all we know she could have had a computer & connection to the Internet installed in her brain!

    Just because the technology hasn't been invented doesn't mean it's impossible! She could be a secret time traveler to, and obviously people form the future have lots of new tools to secretly pirate other peoples content from the Internet!

    And of course you should be guilty of viewing illegal content by accident! How else can you easily get your enemies thrown into jail for breaking some stupid and pointless law? You expect a person wanting revenge to fake an entire crime just to frame their enemy? That's too much work! Besides, now we can throw that stupid judge in jail for viewing illegal content on the Internet!

     

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    Anonymous Coward, Jan 4th, 2012 @ 2:05pm

    And this is exactly why the Pirate Party keeps winning seats.

     

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    Anonymous Coward, Jan 4th, 2012 @ 2:12pm

    Given this ruling I suggest that people in Germany avoid looking at any form of advertisement since adds often contain potentially infringing material. Imagine the resulting arrests if a roadside billboard inadvertently posted an infringing photo...

     

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    Aliasundercover, Jan 4th, 2012 @ 2:13pm

    650 Euros

    So, the court fouled up to the tune of 650 euros. In a US court the similar cases are for millions. I think they have a long way to go before they can compare with US injustice.

     

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    CN, Jan 4th, 2012 @ 3:38pm

    Dynamic IP

    What if you have a dynamic IP? Are you responsible for every IP address you were ever assigned?

     

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      Anonymous Coward, Jan 4th, 2012 @ 4:02pm

      Re: Dynamic IP

      well, since the usual DSL system here in germany has dynamically assigned IPs, which change every 24 hours (mostly no technical reason, just a way to sell expensive static IPs tu business users)It stands to reason, that this will be the case. If that ruling really holds up and it becomes the standard way of deciding these things, the only thing germans can do is to completely get rid of all internet connections since it becomes an unpredictable financial risk.

       

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      WysiWyg (profile), Jan 4th, 2012 @ 11:52pm

      Re: Dynamic IP

      No no, you're responsible for every IP-address that the ISP THINKS is assigned to you. Actual facts are irrelevant.

       

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    identicon
    Anonymous Coward, Jan 4th, 2012 @ 4:46pm

    g

     

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    Cattle Prod, Jan 4th, 2012 @ 4:48pm

    Have a Facebook account? Lookout, you might end up in a German oven.

     

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    WysiWyg (profile), Jan 4th, 2012 @ 11:54pm

    Global liability?

    The question on my mind is this; to what extent does this crazy liability extend beyond their borders? Can a rightsholder/"rightsholder" go to court in Germany and have me in Sweden found guilty? Consider that they have used their beloved European Arrest Warrant for just about anything, what's to stop them from using it in this case?

     

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    Hans, Jan 5th, 2012 @ 11:37am

    Well this is some violant behaviour. I did not expect the USA
    would be alone for a new holocaust under a different flag. I think without the help of german gestapo some behaviour of transatlantic organisations would not have been possible because lack of knowledge. Anyway after a long time of inactivity all of the symptoms are back. But we have slept so well since a long time. Why should we care about?Anyway it's just a hypothesis about how it could be. Any association is pure random.

     

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    kevind35okc, Oct 2nd, 2013 @ 2:53am

    Hi,
    does anybody know, if the higher courts reversed any of the two rulings? Has there been any new rulings on these topics?

     

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