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

from the mask-is-slipping dept

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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Filed Under: children, germany, liability, parents

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

from the a-string-of-failures dept

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.

Filed Under: assets, copyright, criminal, doj, germany, hosting, kim dotcom, liability
Companies: megaupload

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

from the your-shakedown-is-GO! dept

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.

Filed Under: germany, music, rates
Companies: gema

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

from the @hats-and-@fish dept

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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Filed Under: @, germany, trademark
Companies: @ t.e.l.l.

Twitter Cuts Off Illegal Neo Nazi Group Account In Germany

from the censor-locally dept

Back in January, we wrote about Twitter's decision to set up tools to allow it to censor locally if required to under local laws. While many people got upset about this, believing it meant that Twitter was supporting censorship, we noted that the issue is a bit more nuanced than that. You could take the extreme position that Twitter should stand up for free speech absolutely, no questions asked, anywhere around the world. And, to some extent, I'm sympathetic to that viewpoint. However, at the same time, it is a fact that different countries have different laws, and some of those laws restrict free speech. Twitter's decision, then, is a compromise on that, but in a somewhat more effective way. They will only block the content in that specific country where it has been deemed illegal.

And, now, nine months later, Twitter's General Counsel Alex Macgillivray (@amac), has admitted to using the censorship ability for the first time, for the account of a neo-Nazi group based in Germany, where it has been declared illegal. The block only applies to Germany. As some have noted, this is a really bad group. But, of course, it's always those kinds of cases that test your principles. As promised, Twitter has publicly shared the takedown letter it received on ChillingEffects.

Dear Madam, Dear Sir,

the enclosed letter gives you the information that the Ministry of the Interior of the State of Lower-Saxony in Germany has banned the organisation "Besseres Hannover". It is disbanded, its assets are seized and all its accounts in social networks have to be closed immediately. The Public Prosecutor (State Attorney's Office) has launched an investigation on suspicion of forming a criminal association.

It is the task fo the Polizeidirektion Hannover (Hannover Police) to enforce the ban.

The organisation "Besseres Hannover" uses the Twitter account
besseres-hannover@hannoverticker
https://twitter.com/hannoverticker

I ask you to close this account immediately and not to open any substitute accounts for the organisation "Besseres Hannover".

Please confirm that you have received this letter and let me know what measures you have taken.

Yours sincerely,

[signature]
Head of Police Admin Dept

This is the kind of thing that Twitter absolutely expected -- and the fact that is only banning the account in Germany, rather than following the demands of the letter ordering the account be shutdown completely, suggests that Twitter isn't just caving in here. Of course, given my strong belief in the importance of free speech, I think that the demand to shut down the account itself is the bigger issue here, rather than Twitter's reaction to it. In ordering it shut down, and leading to this public admission about it from Twitter, all that German law enforcement has done is call more attention to this group.

Also, I'd take some issue with Amac's claim that this is the "first time" the company has used its ability to "withhold content." It has done so repeatedly in the past over DMCA claims. Yes, that's somewhat different, but not as much as some would like to believe. Both are cases where the local law claims that the content in question is illegal, and upon notices sent to Twitter, it blocks that content. That makes no statement on whether or not such content should or should not be illegal. But the basics of the situation are really the same.

Either way, I appreciate that Twitter is at least trying to walk the fine line of both complying with the laws in countries like Germany, while simultaneously effectively demonstrating why such laws don't necessarily work well. I can certainly understand why Germany has laws against neo-Nazis and hate groups. Given the history there, it's hard to imagine such laws not existing. But situations like this raise questions about just how effective they really are. In this case, all it's really done is call more attention to the group in question. As for Twitter, you could argue that the company could go much further, but it would clearly run into significant legal challenges. And, while it would be great if it also recognized that the DMCA notice situation really isn't all that different, it's difficult to fault Twitter for deciding this particular battle wasn't worth fighting against.

Filed Under: free speech, germany
Companies: twitter

German Gov't Inadvertently Reveals Police Monitor Gmail, Skype, Facebook & Use Snooping Malware

from the did-we-really-tell-them-that? dept

Transparency is worth having for itself, since governments often tend to behave a little better when they know that someone is watching. But occasionally, requests for data turn up something big and totally unexpected because someone failed to notice quite what the information provided implies.

Here's a great example spotted by the annalist blog, which reports on a parliamentary enquiry about expenditures by the German Federal Ministry of the Interior, responsible for internal security. What was probably thought to be no more than a few dozen pages of boring and thus safe figures turned out to reveal something quite shocking:

The German ministry for home affairs and thus the German police clearly state that they are monitoring Skype, Google Mail, MSN Hotmail, Yahoo Mail and Facebook chat if deemed necessary. Money is spent on trojan viruses and we can be quite certain which company produces the IMSI catchers [used for "man-in-the-middle" attacks on mobile phones] used by German police.

It's been known for a year that the German police forces have been using malware to spy on citizens via their computers, but the latest revelations about surveillance activity go far beyond that. It confirms that even in countries where people are very sensitive about privacy, Internet snooping by the police is routine. It also emphasizes, once more, the importance of encrypting your communication channels where possible, and avoiding those where it isn't.

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Filed Under: encryption, germany, law enforcement, malware, spying, surveillance

German Pirate Party Makes Some Shockingly Unshocking Proposals For Copyright Reform

from the is-that-it? dept

As Techdirt has reported, after a year of amazing successes, the German Pirate Party is going through something of a bad patch at the moment. One reason is that it seems to spend more time squabbling in public than on crafting policy documents that will win over the public. That makes the recent appearance of proposals for copyright reform particularly significant.

To be fair, one reason for the delay in producing them is that the Pirate Party has been involved in a major series of consultations with artists and publishers (original in German). These are also described at some length in a new brochure (pdf in German), whose last third consists of examples of new business models that seek to exploit rather than fight the shift to digital -- none of which will come as any surprise to readers of Techdirt. More interesting is the section detailing of the Pirate Party's core ideas for copyright reform, which aim to strike "a fair balance between creators and users" according to the text, and include the following proposals:

No online surveillance, blocking technologies or data retention

The reduction of the term of copyright

Legalization of DRM circumvention tools

More rights for creators when negotiating with publishers

Legalization of free, non-commercial copying of all creative works online

Digital archives for libraries

Exemption of educational establishments from copyright licensing fees

Open access to all publicly-funded academic work and broadcasting

Legalization of open wifi networks

It's a pretty restrained list, although it will doubtless be met with howls of disapproval from the usual suspects. Whether it's enough to win the German Pirate Party more favor with voters, especially the younger ones that are its heartland, remains to be seen. Moreover, now comes the even trickier task of drawing up a coherent political program for topics outside the world of copyright, where there is far less consensus about what -- if anything -- the Pirates are fighting for.

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Filed Under: copyright, germany, pirate party

Top Pirate Party Member Has DMCA Takedown Notices Issued In Her Name

from the thinking-it-through dept

Julia Schramm is one of the rising stars of the German Pirate Party: in April, when she was just 27 years old, she was elected to the national party's executive committee. No surprise, then, that she is against copyright: in a podcast she described intellectual property as "disgusting" (original in German.) More surprising is that, despite this, she signed a contract with Knaus-Verlag, part of the publishing giant Random House group, to write a book. Perhaps the $130,000 advance had something to do with it.

The book is called "Click me: confessions of an Internet exhibitionist", and sells for around $22 ($18 for the Kindle version), which seems a bit pricey for just 208 pages. That wouldn't matter if the contents were of particularly high quality. Alas, it seems that many feel they are not: at the time of writing, the book has 10 one-star reviews on Amazon.de, some of which are pretty damning -- "it's really a shame about the trees that were cut down for this book" -- just two five stars, and one three stars. The German magazine Der Spiegel called the book "a disaster."

Schramm can probably live with the reviews (after all, she still has that $130,000 advance.) What's slightly more problematic for her career as one of the top Pirates is the fact that just one day after the book appeared, her publisher sent a takedown request to a site that was hosting a, er, pirate copy -- and in her name:

"This file is no longer available due to a takedown request under the Digital Millennium Copyright Act by Julia Schramm Autorin der Verlagsgruppe Random House."

Given her background and stated views, some might say that's pretty, well, disgusting....

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Filed Under: click me, copyright, dmca, germany, julia schramm, pirate party
Companies: random house

Google's Autocomplete Dilemma: Every Concession Makes It Easier For The Next Person To Complain

from the infringement-vs.-defamation dept

Back when Google decided to be the arbiter of what words were strictly for infringement in its previously useful autocomplete function, some of us saw the looming danger of such a move, in that it opens up Google to requests for all kinds of autocomplete modifications. The theory was that Google could placate movie studios and record labels by refusing to let autocomplete add words like "torrent" to searches, because lord knows that there isn't a legitimate use for those damned things.

But the problem with the permission culture is that it lives by that old adage: give an inch and they will take a mile. So, as was inevitable, what began with "torrent" and media files soon became fights over autocompletes like "jew" and non-infringing search results. And, as Google opens the door another inch each time it caves in, the floodgates continue to threaten. It would be problematic for Google to assert selective moderation of autocomplete. If they will block autocomplete terms for media files, why not defamation? If they'll block defaming terms, why not parodies? If they'll block parodies, why not controversial negative articles?

That's how we've arrived in a world where the wife of a disgraced former German President is suing Google because autocomplete offers suggestions like "escort" and "prostitute" to complete a search of her name. Bettina Wulff is the wife of Christian Wulff, who resigned the Presidency amid allegations of corruption earlier in his career. For whatever reason, there have long been rumors that she had a colorful past and those rumors spread like wildfire on the internet.

"My pseudonym is supposedly 'Lady Victoria' and my workplace was apparently an establishment called 'Chateau Osnabrück,'" Wulff writes, according to Bild. She continues: "I have never worked as escort." The rumors have been very hurtful for her and her family, Wulff writes, describing her concern that her young son Leander might discover the speculation while surfing the Internet.

Wulff, working with her lawyers, has successfully sent a myriad of cease and desist notices to bloggers and television personalities, some of them quite well known in Germany. Assuming the allegations are as false as she claims, that's all good. But now she's bringing Google into the mix because autocomplete...you know...works the way it's supposed to.

But last week they took on Internet giant Google too, filing a defamation suit with the Hamburg district court to force the search engine to remove a long list of damaging terms recommended by its "Autocomplete" function in connection with Wulff. Google, which has refused to comply, claims that the search suggestions are simply the result of an algorithm. The company seems confident about the lawsuit, having won similar cases in court with claims that the search engine only reflects what people search for most often online.

But... thanks to Google's double standard in editing for copyright, it's making it easy for some to argue that it should also do the same for stories like this one:

Simply put, Google's position is this: In response to pressure from a powerful lobby, the company will block search terms and hits, forcing undesirable results lower on their list of links. But when it comes to individual people, Google unscrupulously links users to websites that violate their personal rights.

[....]It would appear that Google's position on intervening in search results and suggestions depends on the influence of the parties involved. It hides links to pirated material, but not those that violate personal rights, and it places links to its own products prominently in its supposedly objective results.

Google appears to choose what is objectionable based on what might be bad for business. The company may well come through Bettina Wulff's suit legally unscathed. But ethically, questions will remain. Google's choices in the matter seem opportunistic. Given the quasi-monopolist's powerful position in the market, that is unsettling.

Whether or not you agree those claims are accurate, you can't deny that Google made such arguments much, much easier when it started editing autocompletes and search results in favor of copyright holders.

Despite what I think is a common sense notion that Google shouldn't need to bend its autocomplete algorithm under notions of comfort, the fact that it's opened the door to doing this before will make replying to this and other suits more problematic. A Google spokesperson is quoted in the article saying that the company won't give in this time because its autocomplete suggestions are objective. That may have once been the case, but it simply isn't any more.

Filed Under: autocomplete, bettina wulff, defamation, double standard, edited results, germany, search
Companies: google

Has The German Pirate Party Lost Its Way?

from the harder-than-it-looks dept

For the last year, it seemed like the German Pirate Party could do no wrong. In November 2011, it won 9% of the vote in the Berlin parliamentary elections, then 7.4% in Saarland in March, 8.2% of the vote in Schleswig-Holstein in May, and a similar level in North Rhine-Westphalia shortly afterwards. There was a little pushback from copyright maximalists, but after ACTA's defeat in July, you might have expected the Pirates to be riding even higher in the public's favor. A recent article in the German news magazine Der Spiegel reveals that's far from the case:

a new opinion poll by the German public broadcaster ZDF put support for the party at just 6 percent, its lowest level since March. Another survey recently conducted by the Forsa research institute found that the Pirates only enjoyed 7 percent of the electorate's support, down from 9 percent in July. Indeed, it would seem that the up-and-comers are losing a bit of their magic.

As Der Spiegel points out, this is largely the Pirates' own fault. Brutal in-fighting, made all-the-more evident because of the party's laudable belief that internal discussions should be conducted in the open, is undermining the party's credibility as a serious political player:

What other party streams the meetings of its national committee live on the Internet or allows people to watch sessions of its parliamentary groups? Is there another party where it's possible to find its members' cell-phone numbers via a Google search? But the constant chatter of the crowd also has negative consequences: It makes it difficult for the party to be taken seriously as a political actor.

Equally serious has been an inability to set any overall sense of political direction:

it is still unclear where this journey is leading, and the party can't answer the relevant questions. "A unified strategy is not observable," Klaus-Peter Schäppner of the Emnid opinion-research institute told SPIEGEL ONLINE.

It is perhaps understandable that a party that coalesced around a small number of digital issues -- absurdly harsh punishments for unauthorized file sharing, or the increasing invasion of privacy by governments through the use of online surveillance -- should find it harder to arrive at a consensus on more traditional ones, like economic and social policy. But it was widely assumed that in the field of copyright, at least, it would be able to make radical and concrete proposals that set it apart.

A recent policy document on the subject, drawn up by the Pirate Party in Berlin (pdf, in German), disappoints those expectations. Where the German Pirate Party's page on copyright boldly calls for the legalization of copying for non-commercial purposes, the rejection of DRM as "immoral", and "a drastic reduction of copyright periods, far below the periods specified in the TRIPS agreement," the Berlin Pirates' paper is content to produce a series of meek observations about ways in which small improvements could be made without rocking the boat. These include the wider use of Creative Commons licenses, making court rulings freely available, and more transparency for negotiations with the German performance rights organization GEMA. None of these are bad ideas, but they're hardly the significant reform proposals that helped get the party so much attention in the first place.

Maybe the Pirate Party wants to prove its rigor and seriousness by starting from the current position, rather than seeking to overturn it; perhaps it is trying to work with the mainstream parties, and doesn't want to frighten them with radical proposals; or perhaps it has simply lost its way and ended up being assimilated by the system.

Whatever the cause, the consequences of this lack of vision could be serious. As Der Spiegel notes:

polling experts say the party is in freefall and that it may struggle to get the 5 percent of the vote it needs to win seats in the German parliament, the Bundestag, in the 2013 national election.

That's by no means inevitable, but the German Pirates certainly face a huge task if they want to avoid becoming a textbook example of how quickly a new political party's fortunes can wax and wane.

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Filed Under: copyright reform, germany, pirate party