Copyright Troll Threatens Criminal Charges In Germany Against Domain Registrar
from the not-how-it-works dept
I've discussed in the past how problematic it is when people don't recognize the differences between edge providers and infrastructure providers when it comes to internet services. Usually it's policymakers (or the press) getting these things confused, but we've certainly seen our fair share of attempts by copyright maximalists to use this confusion to their advantage. However, this may be the first I recall of seeing a copyright trolling operation trying to effectively do the same.
Earlier this fall, Mark Jeftovic, from EasyDNS had a blog post about how a German copyright troll, called Fechner Law, had threatened criminal charges against the company if it didn't take down an allegedly infringing URL and pay a significant cash settlement. Jeftovic responded to Robert Fechner, the young lawyer behind Fechner Law, and pointed out that EasyDNS is merely the domain registrar, and doesn't host the site in question. Fechner, somewhat obnoxiously hit back by saying that German law required EasyDNS to at least turn over the information about the website owner or face criminal charges -- even adding on "additional damages due to your uncooperative and unlawful behaviour will be claimed."
Dear Mr Jeftovic,
I appreciate your alleged concern for your users’ privacy.
Nonetheless, according to OLG Frankfurt a. Main, Urteil v. 22.8.2017, Az. 11 U 71/16 you have to provide us at least with a name and e-mail of the infringer.
If you fail to comply with the law, further proceedings will be to file a criminal complaint against you in order to acquire this information on the basis of § 14 II TMG.
In this case, additional damages due to your uncooperative and unlawful behaviour will be claimed.
We await your reply until 20.09.2019.
Sincerely,
Rechtsanwalt Robert Fechner
FECHNER LEGAL
Jeftovic proceeded to point out that Canada, where he is based, is not Germany (who knew?) and thus was not subject to whatever interpretation of German law Fechner believed was relevant here:
Mr. Fechner,
That is all very interesting.
It appears that you do not understand that we are a domain registrar. We are not the alleged copyright infringer. This is not our website. We are not even hosting the website. My company, easyDNS Technologies, Inc., must comply with Canadian privacy law that, in these circumstances, prohibits the disclosure of customer information absent a Court order that is enforceable in Ontario, Canada.
My company must also comply with Canadian copyright law. There is a process to be followed under the Copyright Act (see s. 41.25) if you are actually interested in having the notice provided to the customer and the allegedly infringing photograph taken down. I suggest you follow that process.
Your threat of criminal sanction against a law-abiding passive intermediary is unethical and should be met by your judicial system with serious concern.
We did not receive any of your earlier correspondence. Your letters appear to have been sent by email to [redacted]/@myprivacy.net. (MyPrivacy.net Ltd. is a service that protects the public disclosure of registration details on the “whois” registry.) MyPrivacy.net is not the owner of the website. The email address, [redacted]/@myprivacy.net, also seems to contain an error (there is a / in the address). Most likely the emails didn’t go anywhere. We urge you to consult a Canadian lawyer to help you understand the privacy and copyright regimes that apply here.
- mark
Mark tells me that Fechner has not replied to this email, but this kind of blustering threat letter seems all too common these days from copyright trolls. It seems that, despite their pretend adherence to being all about "law and order," when it suits their purposes (i.e., shaking people down for money), they don't much care about the law beyond that it lets them sound scary to people who aren't knowledgeable enough about the law. This is, as Mark notes in his own email, quite unethical.
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Filed Under: canada, copyright, copyright troll, domain registrar, germany, privacy, robert fechner
Companies: easydns, fechner law
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think outside your box
So many trolls seem to think that ethical is an antonym of profitable. They do teach ethics in law school, right?
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Re: think outside your box
If they do, they're taught by Jaana Woiceshyn
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I don't recall the case off the top of my head, but a domain registrar was found liable several years ago in German court over a website content issue. So, at least in Germany, Fechner might not be far off the mark.
Also, EasyDNS is great. They have an established history of telling obnoxious lawyers where to shove it.
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Re:
That was over 5 years ago as reported right here on TD... and was a real head-scratcher.
https://www.techdirt.com/articles/20140209/00282126148/dangerous-ruling-germany-make s-domain-registrar-liable-copyright-infringement-website-it-registered.shtml
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Re: Re:
Nice find. I would note to the OAC that the ruling in question involved a German domain registar, and so was subject to the jurisdiction of the German court, which is likely why EasyDNS highlighted that they are not a German compnay.
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Re: Re:
By the ‘logic’ displayed in that ruling, you could sue the German government for copyright violation because a German citizen didn’t have a license.
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Re:
EasyDNS does sell German domains (.de), which may interfere with the idea that German law is irrelevant to them.
(I also see .protection domains are USD 2950/year... which is a little too on-the-nose.)
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Re: Re:
But that's like saying a Canadian flag store falls under German laws because it sells German flags.
Looking at the easyDNS knowledge base, I can't find an exact answer, but it sounds like all of its servers reside inside the borders of Canada and therefore would only be subject to Canadian law and standard DNS peering agreements.
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Re: Re: Re:
No, it's not. What you're missing is that to sell .de domains, they have to contract with a German company, DENIC, who administer the top-level domain. Every transaction related to a .de domain would effectively pass through Germany. Whether that's enough of a nexus to apply German law to EasyDNS is questionable, especially in relation to a non-.de domain.
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Re: Re: Re:
Afaik the EU has it now in written law not just court decisions, that what counts is the place where a service is received in regards to which laws apply.
For example if someone out of Germany can access those servers "officially" (without vpn or other geo blocking circumvention measures) German law would apply. Because according to said law, the service would be received in Germany.
So if anyone wants to run an internet service and doesn't want to bother with EU law or any of its memberstates better use geo blocking.
Of course this case could be interesting as how this works with contradictory laws.
But then again, iirc the law in the EU and Germany only requires to have an adress through which somebody can be reached, which can be an intermediary.
Don't know what legal penalties and for whom would arise, when said adress is non functional.
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Re: Re: Re: Re:
That doesn't matter for non EU countries. Their courts don't have jurisdiction over anyone unless there is an extradition agreement. They could use their military to grab people from other countries of course but I don't think they go to war every time an internet site posts something that offends them.
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Re: Re: Re: Re:
"Afaik the EU has it now in written law not just court decisions, that what counts is the place where a service is received in regards to which laws apply."
The french have pushed for that, at least, but I'm not sure it's law yet. If it is that's well beyond insane because that would be like arresting a convenience store owner because a customer who was buying from them had earlier been caught speeding.
Too many laws made and proposed by the EU requires a control over data coming in and out of the EU which makes the chinese great firewall look like a toddler with a stop sign.
It's more than just worrying when your government proposes laws which, in order to enforce them, require the complete abolition of half the human and civic rights held by the citizenry.
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Re: Re: Re: Re:
Of course this case could be interesting as how this works with contradictory laws.
Never mind 'contradictory', the first thing that came to mind is the sheer idiocy that are blasphemy laws in the countries stupid enough to have those sorts of things.
If all that matters is where a service can be accessed then it seems they would either have opened themselves up to blatant and pretty undeniable accusations of hypocrisy if they refuse to be bound by the laws of other countries, or being bound by whatever the most restrictive laws are out there.
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Re: Re: Re:
Selling .de domains puts them in a position of managing German resources in cooperation with the German registry. They'd have had to sign an agreement with the registry to do that, almost certainly specified to operate under German law. But the domain in question wasn't in .de.
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There are too many people going to law school, and an over glut of people who can't get legal jobs because of this.
The answer is simple - make it easier to disbar copyright trolls. So people who ACTUALLY want legal jobs to "uphold the law" (yeah I know) can have a chance....
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Re:
I'm curious, what percentage of law degree holders actually practice law?
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Not enough, given how we keep getting stories about copyright trolls.
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Re:
Well, they technically "practice" and that's about as serious as they get.
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Re: Re:
Yes, the obvious joke.
Point being that there are many non law practicing positions in business where a law degree is required.
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Re: Re: Re:
"Required"? I haven't heard of any where its required. Many non-practicing positions being held by someone with a law degree, yes, but not required to do so. Can you give an example?
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Re:
Who is "we"? The royal "we"? Or the Techdirt "we"?
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Looks like somebody needs to remind the Germans they lost both World Wars, and did not end up ruling the world.
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Re:
don't be a dick
the people that caused that are all very elderly or dead
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Re: Re:
Seems to be quite a few of them running around causing trouble.
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Re: Re:
Sgt. Hulka says to lighten up, Francis.
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Great....now the IRS scammers have branched out into copyright trolling.
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Germany is bad for abusive copyright law. It has gotten to the point where a Wikivoyage-style guide would find very few wi-fi hotspots which they could recommend to the voyager in that country - because no one dares offer a wi-fi hotspot at most commercial businesses for fear of being sued. At some point, this sort of policy has adverse real-world consequences.
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Re:
"Germany is bad for abusive copyright law"
Was a story some time ago addressing the fact that many night clubs no longer offer live music due to excessive fees. Seems a bit self destructive.
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Re: Re:
Yeah, it's the great conservative conspiracy in the works: make life boring as hell. No WiFi, no music, you will finally enjoy farting in the chair. Of course only when you're not working, which is any time from 13 to 67(+).
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Robert Fechner — I had to check the spelling multiple time because my brain keeps wanting to type "Felchner" — looks like exactly the sort of millennial dipshit that would send a letter like this, and then pout about it when he's blown off, no doubt stomping his widdle foot in the process.
According to this page, he's not so much a copyright troll, but the German equivalent of Richard Liebowitz:*
• https://photoclaim.com/en/cease-desist-abmahnung-filipp-bickel-robert-fechner/
But rest assured, his website promised the utmost in customer satisfaction: "A holistic and personal consulting related to all legal questions and a permanent responsiveness for our clients is very important for us."
• https://www.fechner-legal.de/en/
*More hilarious nonsense from the photoclaim website: "The dynamics of the internet require you to solve the matter quickly and the communication via internet gives you the possibility to respond in time. Delivery via email is sufficient according to the law."
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Re:
"The dynamics of the internet require you to solve the matter quickly and the communication via internet gives you the possibility to respond in time. Delivery via email is sufficient according to the law."
Service of legal notices through a method that can prevent a successful delivery for any number of reasons beyond the recipient's control? Why do I get the feeling that claim will hold up right until someone actually calls him out on it in court?
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Re:
"the sort of millennial dipshit that would send a letter like this"
What kind of moronic comment is this?
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Re: Re:
Made by the kind of knuckledragger who thinks blaming millennials for everything is insightful... never mind that the usual profile for a copyright troll is Gen X.
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Copyright trolls are stupid, i suppose he could sue the website owner,
but if its based in canada he, ll have to go to a canadian court.
No one should be sueing domain registrar ,they are not responsible for All
content on all the websites that use the service,
they cannot not even know is this song or video, fair use,parody, infringing,
who owns this photo, or piece of art,is it legal in germany or the uk, or russia ?
that is not their area of expertise .
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Rights swapping
I got my own email from him today. My company used to use a lot of Creative Commons images from Flickr and paid close attention to the rights. Even though all the photos that this lawyer's business partner at Photoclaim has on Flickr are now marked "all rights reserved" I was very leery that was the original rights grant. I sent an email to Flickr's help account and asked if they had a change log on rights. They emailed back right away and says "sure, what's the URL." In 15 minutes they replied and said the photographer had changed the rights four years after uploading it.
So business plan seems to have been: 1. Upload lots of images to Flickr and tell people they can use them under CC license. 2. Wait a few years. 3. Change rights. 4. Start a website about respecting photographer's rights. 5. Threaten lawsuits.
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