German Court Refuses to Order ISPs to Disclose User Identities

Heise has an article indicating that the Higher Regional Court in Hamburg has declined to order ISPs to disclose the identities of users alleged to be infringing copyright by running FTP servers. The court held that, as ISPs were not joint wrongdoers, their obligations were limited to blocking and removing infringing material:

In its highly detailed opinion the court concludes that the obligation in piracy cases to provide information on the creation and/or distribution of pirated items - created by the right to information specified by the Copyright Act - only applied to those parties themselves involved in the said illegal acts. The access provider was not a party of this kind, the court ruled, as it merely provided access to the Web. Contrary to the opinion of the District Court a provider could also not be held accountable as a so-called "Mitstörer" (co-troublemaker) in breach of the law on the grounds of having providing access to the Internet. The legislation of paragraph 8 subsection 2 of the Tele Services Act (TDG), according to which access providers in line with the laws in general and despite a certain privileged position as to liability are enjoined to "remove and block" illegal content, had not change this state of affairs, the Higher Regional Court concluded. After all, "remove" and "block" specifically did not imply the divulging of information, thus the OLG. With its decision the OLG Hamburg has taken the same line as the OLG in Frankfurt-on-the-Main. The judges in the federal state of Hesse hence also disputed that there was a right to demand information from access providers, as such a right to demand information served to discover and drain the sources and distribution channels of pirated items and only such parties as committed or participated in such violations of copyright were obliged to provide information, they concluded.

It'll be interesting to see whether this approach will survive the implementation of the IP Enforcement Directive. Article 8 of this draconian Directive creates a "right of information" - i.e. a right to compel third parties to disclose information, including the identity of an alleged infringer. (Effectively transplanting the Norwich Pharmacal order into EU law.) The Directive itself, after much lobbying, was amended to limit this to "acts carried out on a commercial scale" i.e. "those carried out for direct or indirect economic or commercial advantage; this would normally exclude acts carried out by end consumers acting in good faith" (see recital 14). However, this definition is opaque. What's meant by "indirect economic advantage"? Would it include savings made by downloading music from others? What's the significance of the reference to "acting in good faith"? If A has a large music collection, and shares that via a p2p network, is he acting on a commercial scale? Does it make a difference whether he knows that what he's doing is illegal?

Also, even if Article 8 itself doesn't cover this situation, nothing in the Directive precludes member states from choosing to extend it to non-commercial situations (see recital 14), and we can expect the music / film industry lobbies to push at national level for the directive to be extended to cover all alleged infringements - commercial or otherwise.

Via The Register