Public prosecutors refuse to collect IP address-related information from providers
A report by heise online on a ruling by the Local Court in Offenburg on the determining of identities of P2P network users by prosecuting authorities has had repercussions in the media. The editorial staff has meanwhile seen older decisions by public prosecutors' offices that point in the same direction. The decision reached in the above case can thus no longer be thought of as a single-case decision.
On the grounds of "obvious disproportionateness" the Local Court (AG) in Offenburg had on July 20 prohibited the local public prosecutor's office from requesting that a provider reveal the personal data that match the IP addresses of alleged P2P network users. Offering a few copyright-protected music tracks via a P2P network client was "a petty offense," the court declared.
That the Local Court is not alone in seeing matters this way is revealed by a lengthy letter written by the public prosecutor's office in Celle, dated February 20, 2007; a copy of which heise online has seen. The letter was written in response to a complaint filed by the law firm of Schutt-Waetke, known for filing complaints on a massive scale. The law firm had earlier filed a vast number of complaints against persons alleged to have made copyright-protected music available for download within the context of a file-sharing network with the public prosecutor's office in Hanover. Because the public prosecutor's office in Hanover had refused to determine the individuals associated with the IP addresses submitted by the law firm, a process that would have involved forcing the providers to reveal the relevant personal data, Schutt-Waetke had written a letter of complaint to the chief public prosecutor's office in Celle, which is the supervising authority when it comes to the public prosecutor's office in Hanover.
The supervising authority dismissed the complaint as baseless. It moreover agreed with the reasoning of the public prosecutor's office in Hanover according to which it was doubtful whether the client of Schutt-Waetke was genuinely interested in initiating criminal proceedings. The case did not fulfill the indispensable condition of an investigation being in the public interest, because the offenses committed by the alleged users of the file-sharing network had not "disturbed law and order beyond the sphere of life of the client," the chief public prosecutor's office in Celle declared. In addition the offenses were "minor." And there was no evidence that substantial damage had been done. The chief public prosecutor's office goes on to say that "some parties may regret the fact" that the legislator has not given holders of copyrights a civil law right to obtain the type of information in question from providers. Such parties "could not however expect such omissions on the part of the legislator to be offset in other areas and in every minor case by the endeavors of the prosecuting authorities with their limited resources."
In a similar case the public prosecutor's office in Berlin was even more explicit. When a law firm within the context of a complaint submitted 9,186 IP addresses to the public prosecutors office, asking for them to be investigated, the office denied a request for information to be obtained from the provider. The law firm thereupon complained in writing to the chief public prosecutor's office in Berlin and to the Senator of Justice (the Minister of Justice of the German federal state of Berlin).
heise online has meanwhile seen an anonymized version of the lengthy reply of the chief public prosecutor's office in Berlin, dated October 18, 2006. In its reply the chief public prosecutor's office accuses the copyright holders of trying "under cover of pretending to want to initiate criminal proceedings to obtain for free and by exploiting the limited resources of the prosecuting authorities and at the expense of the budget of the federal state of Berlin the personal data required for the successful pursuit of civil claims." The chief public prosecutor's office in Berlin also denied that launching an investigation was in the public interest. All the offenses that had been brought to its attention were minor, the office stated. In a fashion comparable to that of the Local Court in Offenburg the chief public prosecutor's office in Berlin also looked into the damage done by the P2P network uploads. Contrary to the statements found in the complaint the damage done had to be regarded as "insignificant," the office declared. Hence the criterion of "minimal culpability," of necessity, had to result in a nolle prosequi being issued without any prior investigation.
Moreover, the "deciphering of IP addresses" and search warrants were intrusions on basic rights, to which the principle of proportionality had to be applied, the chief public prosecutor's office stated. This principle required that no investigation be launched in response to the complaints filed, the office declared. Here too the chief public prosecutor's office points to the copyright holders' likely motivation in filing the complaints: "Criminal-law-based investigations that entail intrusions on basic rights must not be launched for extraneous reasons -- such as nothing more than a desire to obtain evidence for a civil suit." (Robert W. Smith) / (jk/c't)
A report by heise online on a ruling by the Local Court in Offenburg on the determining of identities of P2P network users by prosecuting authorities has had repercussions in the media. The editorial staff has meanwhile seen older decisions by public prosecutors' offices that point in the same direction. The decision reached in the above case can thus no longer be thought of as a single-case decision.
On the grounds of "obvious disproportionateness" the Local Court (AG) in Offenburg had on July 20 prohibited the local public prosecutor's office from requesting that a provider reveal the personal data that match the IP addresses of alleged P2P network users. Offering a few copyright-protected music tracks via a P2P network client was "a petty offense," the court declared.
That the Local Court is not alone in seeing matters this way is revealed by a lengthy letter written by the public prosecutor's office in Celle, dated February 20, 2007; a copy of which heise online has seen. The letter was written in response to a complaint filed by the law firm of Schutt-Waetke, known for filing complaints on a massive scale. The law firm had earlier filed a vast number of complaints against persons alleged to have made copyright-protected music available for download within the context of a file-sharing network with the public prosecutor's office in Hanover. Because the public prosecutor's office in Hanover had refused to determine the individuals associated with the IP addresses submitted by the law firm, a process that would have involved forcing the providers to reveal the relevant personal data, Schutt-Waetke had written a letter of complaint to the chief public prosecutor's office in Celle, which is the supervising authority when it comes to the public prosecutor's office in Hanover.
The supervising authority dismissed the complaint as baseless. It moreover agreed with the reasoning of the public prosecutor's office in Hanover according to which it was doubtful whether the client of Schutt-Waetke was genuinely interested in initiating criminal proceedings. The case did not fulfill the indispensable condition of an investigation being in the public interest, because the offenses committed by the alleged users of the file-sharing network had not "disturbed law and order beyond the sphere of life of the client," the chief public prosecutor's office in Celle declared. In addition the offenses were "minor." And there was no evidence that substantial damage had been done. The chief public prosecutor's office goes on to say that "some parties may regret the fact" that the legislator has not given holders of copyrights a civil law right to obtain the type of information in question from providers. Such parties "could not however expect such omissions on the part of the legislator to be offset in other areas and in every minor case by the endeavors of the prosecuting authorities with their limited resources."
In a similar case the public prosecutor's office in Berlin was even more explicit. When a law firm within the context of a complaint submitted 9,186 IP addresses to the public prosecutors office, asking for them to be investigated, the office denied a request for information to be obtained from the provider. The law firm thereupon complained in writing to the chief public prosecutor's office in Berlin and to the Senator of Justice (the Minister of Justice of the German federal state of Berlin).
heise online has meanwhile seen an anonymized version of the lengthy reply of the chief public prosecutor's office in Berlin, dated October 18, 2006. In its reply the chief public prosecutor's office accuses the copyright holders of trying "under cover of pretending to want to initiate criminal proceedings to obtain for free and by exploiting the limited resources of the prosecuting authorities and at the expense of the budget of the federal state of Berlin the personal data required for the successful pursuit of civil claims." The chief public prosecutor's office in Berlin also denied that launching an investigation was in the public interest. All the offenses that had been brought to its attention were minor, the office stated. In a fashion comparable to that of the Local Court in Offenburg the chief public prosecutor's office in Berlin also looked into the damage done by the P2P network uploads. Contrary to the statements found in the complaint the damage done had to be regarded as "insignificant," the office declared. Hence the criterion of "minimal culpability," of necessity, had to result in a nolle prosequi being issued without any prior investigation.
Moreover, the "deciphering of IP addresses" and search warrants were intrusions on basic rights, to which the principle of proportionality had to be applied, the chief public prosecutor's office stated. This principle required that no investigation be launched in response to the complaints filed, the office declared. Here too the chief public prosecutor's office points to the copyright holders' likely motivation in filing the complaints: "Criminal-law-based investigations that entail intrusions on basic rights must not be launched for extraneous reasons -- such as nothing more than a desire to obtain evidence for a civil suit." (Robert W. Smith) / (jk/c't)
Comments