Disclosure Obligations for Access Providers or “What exactly needs to be commercial?”

In order to pursue copyright infringements, rightholders need the names and addresses of the infringers. This creates special problems in file sharing cases where the identity of those who illegally use file sharing systems needs to be found out by checking who’s behind a specific IP address. Detecting copyright infringements and collecting the IP addresses of the responsible persons are just the first steps to this end. But then, the rightholders have no choice but to ask the respective ISP to hand out the data it has about the IP addresses discovered. ISPs for their part need to protect their customers and their business and have to comply with strict statutory data protection provisions. Thus, ISPs and copyright holders are in a permanent conflict of interests.

In the past, music labels brought criminal charges against thousands of files haring users to get hold of their names and addresses from the prosecution services which were obliged to investigate for copyright infringement under criminal law. This long way round the public prosecutors led to huge organizational trouble and an absurd burden for the prosecution services. To correct this situation the German legislator introduced a few years ago new provisions in Sec. 101 of the German Copyright Act putting access providers under the obligation to disclose names and addresses of copyright infringing persons. However, Sec.102 para. 2 of the German Copyright Act limited this obligation for constitutional reasons by (1) requiring “obvious infringements” and (2) limiting the group of obligated parties to those who provide services on a “commercial scale” which are used for infringing activities.

As the wording of Sec. 102 para 2 is somewhat ambiguous and does certainly not fully reflect the documented intention of the drafters and political parties involved in the legislative process, a number of lower courts came quickly to different interpretations of how to understand the “commercial scale” requirement. Some courts held that Sec. 102 para 2 only requires that the party asked to hand out information, i.e. the access provider, has acted on a commercial scale – but not the infringer himself. Other courts came to the opposite conclusion and opined that both the requested party and the infringer must have violated copyrights on a commercial scale in order to trigger the information obligation under Sec. 102 para 2. The latter caused the courts to make sophisticated considerations about the question if the file sharing of one piece of music was to be regarded as being on a commercial scale (which it is of course not – but this seems not to be obvious to everyone).

Recently, the German Federal Court of Justice issued a – heavily criticizeddecision dealing with this question and held that for Sec.102 para. 2 of the German Copyright Act it is irrelevant whether or not the infringing party is acting on a commercial scale. The Federal Court of Justice focused on the intent of the legislator to facilitate the prosecution of copyright infringements on the internet. The wording of Sec. 102 para. 2 of the German Copyright Act was open enough for such an interpretation.

Thus, access providers will in the future not be able to deny the disclosure of the names and addresses of their customers in cases of minor importance, which will further fuel the mass business with warning letters.So I wonder if the case name (derived from the title of the album by German pop star Xavier Naidoo that was at issue in the case) is a good fit: “Everything can get better”…

Leave a Reply

Your email address will not be published. Required fields are marked *