Action Against File-Sharers Is Problematic In Germany

by Ulrika Lomas, for LawAndTax-News.com, Brussels

23 May 2005

Pending the enactment of a new Telemedia Act, German music companies and other content owners face increasing difficulties in pursuing file-sharers.

The Higher Regional Court in Hamburg ruled recently that there is no legal basis for demanding the identities of customers from ISPs because they merely provide access to the web and aren't part of the criminal act of file-sharing. The Court followed a similar ruling by judges of the federal state of Hesse in overruling a earlier decision by the Hamburg District Court, which had granted record companies access to customer data after they discovered an FTP server where numbers by German band Rammstein could be downloaded for free. The District Court had based its ruling on the German Copyright Act.

Meanwhile, ISPs are faced with lawsuits from customers who deny the legality of Internet Protocol address storage. Last week, Deutsche Telekom T-Online subscriber Holger Voss argued in court that under the German Tele Services Data Protection and Telecommunications Act, ISPs are only allowed to store communications data for accounting purposes. Hess argued that dynamic IP addresses are irrelevant for book keeping and shouldn't be stored.

After Jonas Breyer, a specialist on data privacy laws from Frankfurt University threatened to sue Lycos DSL, the company said it would no longer store the dynamic IP addresses of its customers (some ISPs use fixed IP addresses, which evidently would remain available). There is no requirement under current law for German ISPs to keep a record of IP addresses.

An April seminar hosted by the World Intellectual Property Organisation in Geneva on Monday regarding copyright and ISP liability was deeply divided on the issue. The meeting, attended by representatives of the entertainment industry and international government officials, eventually reached the conclusion that more legislation was necessary, but failed to decide whether the new laws should provide stronger protections for internet users, or whether they should support the entertainment industry in hunting down those who infringe copyright.

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