File number:
3 W 184/08
6 0 325/08 Frankenthal Regional Court (Palatinate)
Palatinate Higher Regional Court
Zweibrücken
Decision
In the proceedings
...
Applicant, appellant and respondent, represented by: Lawyers
against
...
Respondent, respondent and intervening appellant
Legal representatives: Lawyers Caspers u. Koll., Rudolf-Virchow- Str. 11, 56073 Koblenz,
regarding an order pursuant to Section 101 (9) of the German Copyright Act (UrhG),
the 3rd Civil Division of the Palatinate Higher Regional Court in Zweibrücken, through the President of the Higher Regional Court, Dury, the Judge at the Higher Regional Court, Simon-Bach, and the Judge at the Regional Court, Gietzen, on the immediate appeal of the applicant dated September 30, 2008, and the cross-appeal of the respondent dated October 6,2008 against the order of the 6th Civil Chamber of the Regional Court of Frankenthal (Pfalz) dated September 15, 2008, which was served on the representative on September 17 and 19, 2008
without oral proceedings on October 27, 2008
decided:
The immediate appeal of the applicant is dismissed.
The respondent's cross-appeal is dismissed.
The applicant shall bear the court costs incurred in accordance with Sections 131a(2) and 128c(2) of the German Court Costs Act (KostO). The applicant shall bear 90% of the respondent's extrajudicial costs in the immediate appeal proceedings.
The respondent shall bear the court costs incurred by the cross-appeal. The respondent shall bear 10% of the applicant's extrajudicial costs in the immediate appeal proceedings.
The value of the subject matter of the appeal is set at
4,500 euros.
Reasons:
I.
The applicant develops and markets computer and video games, among other things. The respondent is an Internet provider.
The so-called "anti-piracy company L from Switzerland determined on behalf of the applicant that on August 28 and 29, 2008, various Internet users used IP addresses provided by the respondent as a provider to download a file designated as "E" or "w." August 2008, various Internet users with IP addresses listed in detail, provided by the respondent as a provider, offered a file designated as "E" and "w" to other users for download via the so-called peer-to-peer network "BitTorrent" and thus made it publicly available.
The applicant advertises on its website that it has deliberately refrained from providing the game with copy protection. In a statement by the applicant dated May 13, 2008, which it submitted as Exhibit AST 9 in its brief dated September 3, 2008, it states that the technical implementation of copy protection does not make sense in view of the costs and effort involved, which in most cases are ultimately circumvented by pirates. At the same time, it called for "feedback" on its decision in this statement.
The applicant argued that it was the owner of the exclusive rights of use and exploitation of the computer game "E," which had been available on the market since June 5, 2008. The files in question were complete and functional versions of this computer game. This was established on the basis of the hash values determined. In the present case, two different hash values had been determined, which was due to the fact that a total of five different versions of the game "E" were in circulation, which did not differ in content but in file size and therefore had different hash values. The infringement of their intellectual property rights by the users active on the Internet at the respective IP addresses at the times mentioned is obvious. Due to the connection owner's obligation to check, this also applies in cases where the infringement was not committed by the connection owner themselves, but by a third party using the Internet access. The connection owner is responsible for the actions carried out via "his" Internet connections as a disruptor, even if his (unencrypted) WLAN access is misused by unknown third parties, because it is technically possible and reasonable for every owner to protect access from misuse by means of suitable encryption measures. The users hidden behind the IP addresses provided had provided services used for infringing activities on a "commercial scale" by making the files mentioned above available to other Internet users for "download." The required "commercial scale," which could be derived from the number and severity of the infringements, resulted in this case from the fact that the program made available for download was a current product.
The applicant requested in the first instance that the respondent be obliged to provide it with - including, if necessary, the use of traffic data - information on the full names and addresses of the persons to whom, in the context of the use of the service provided by the respondent, the IP addresses listed in the AST 7 list were assigned at the respective times specified.
The respondent requested that the application be dismissed, arguing that the software used by L did not work "correctly without exception." Rather, errors, incorrect operation, and manipulation could not be ruled out. In addition, when uploading a file to a file-sharing program, any user could technically prevent the file from being downloaded by making the appropriate settings, so that it could not automatically be assumed that the applicant's program was actually available for download in the cases mentioned. Furthermore, when third parties used Internet access, there were no suitable means of protection to prevent the installation and use of file-sharing software. There is no presumption that the respective connection owner actually used the access. There are no indications that could point to "commercial-scale" activity. Furthermore, according to the current case law of the Federal Constitutional Court, stored traffic data may currently only be accessed if there is suspicion of a criminal offense under Section 100a sentence 2 of the Code of Criminal Procedure.
The Regional Court rejected the application as unfounded in its decision of September 15, 2008. In its reasoning, it essentially stated that there were no indications of a copyright infringement on a "commercial scale." Admittedly, this term is unclear. However, the requirements for "commercial scale" in connection with the copyright information claim were not met in this case. Even though the game had been available on the market for just under three months at the time of the download offer despite the fast-moving nature of the software market, the offer of a single program package worth around €25.00 or part thereof did not constitute a particularly serious infringement of third-party copyrights, which in turn could possibly indicate commercial activity on the part of the infringer. The number of files made available (in this case, one program file) also does not indicate a "commercial scale."
The applicant's immediate appeal is directed against this. She considers the decision to be legally erroneous and seeks a court order permitting the use of traffic data. The respondent has lodged an immediate appeal against the decision of the Regional Court, which does not contain a decision on costs with reference to Sections 101 (9) sentence 5 UrhG, 13a FGG, with the request that its extrajudicial costs be imposed on the applicant.
II.
1. The immediate appeal by the applicant is not objectionable from a procedural point of view (Section 101 (9) sentence 6 UrhG, Section 22 FGG).
On the merits, the immediate appeal is unfounded.
The Regional Court rightly rejected the applicant's claim for information.
The Regional Court correctly assumed that the application was admissible under Section 101 (9) UrhG. The dynamic IP addresses required to determine the names and addresses of the respective Internet users are traffic data within the meaning of Section 101 (9) sentence 1 UrhG. According to Section 3 No. 30 of the German Telecommunications Act (TKG), traffic data is data that is collected, processed, or used in the provision of a telecommunications service. The name of the user and their address, as well as the tariff option, are therefore inventory data. The dynamic IP addresses are used in the provision of telecommunications services and are therefore traffic data. This traffic data may only be collected with a court order. The name information links the IP address to a person and thus to a specific usage process and time. The assignment to the dynamic IP address is a use of the IP address that affects and reveals the circumstances of a telecommunications process (cf. Begr. z. RegE, BT-Drs. 16/5048, p. 59 on Section 101 (2) UrhG; Kitz, NJW 2008, 2374, 2376; Hoe-ren, NJW 2008, 3099, 3100; LG Darmstadt, K&R 2006, 290 ff = MMR 2006, 330 ff = GRUR-RR 2006, 173, 174; dissenting opinion LG Offenburg, decision of April 17, 2008 -3 Qs 83/07).
The Regional Court rightly denied that the requirements of Section 101 (9) TKG were met.
It can be left open whether the application is unfounded simply because the data may have been deleted in the meantime and any claim to information may therefore have become moot. It cannot be assumed that the data has been deleted. In proceedings for a temporary injunction, it may be correct to refer to the court's known practice that the traffic data in question here is usually deleted after seven days at the latest when examining the grounds for the injunction (see LG Cologne, decision of September 2, 2008, Ref. 28 AR 4/08; Frankfurt Regional Court, decision of September 18, 2008, ref. 2-06 O 534/06). In the present case, however, the application is no longer being pursued in summary proceedings and the respondent (provider) has been granted a legal hearing. The respondent did not claim that it was no longer in possession of the data, but merely stated in its written submission of October 13, 2008, p. 19 (p. 213 of the file) that traffic data from Internet service providers is only stored for a few days, a maximum of five to seven days; this is common practice in the industry and is also known to the applicant. Therefore, the applications "could" have been settled in the meantime. However, the Senate – and the applicant – do not know whether the respondent actually still has the data in question stored. The applicant claims that "downloads" and "uploads" took place on August 28 and 29, 2008. It has not been argued whether the Internet connections in question require longer storage of the data in accordance with Sections 96 et seq. TKG, for example for billing purposes, or whether they are flat-rate connections, for which a correspondingly shorter storage period is generally permissible (cf. LG Darmstadt, loc. cit.). Accordingly, it cannot be assumed that the claim for information has been settled.
Based on the applicant's prima facie evidence, it can also be assumed that she is the owner of the copyrights to the computer game program E.
Whether it can also be assumed in her favor that, at the times reported, active customers of the respondent made a file covered by the applicant's copyright available for download on the Internet from the IP addresses identified, and that this activity constitutes the provision of a service within the meaning of Section 101 (2) sentence 1 no. 3 UrhG, is already questionable because, even according to the applicant's submission, the files made available for "download" had different hash values, which could prevent the copyright-protected game file from being clearly identified. Ultimately, this can also be left open, as can the question of whether this constitutes an obvious infringement by the owners of the respective Internet connections to be identified within the meaning of Section 101 (2) sentence 1 UrhG.
In any case, the applicant has not substantiated an infringement on a "commercial scale."
The Senate concurs with the Chamber's comments on the interpretation of the term "commercial scale" in the present case. Contrary to the applicant's legal opinion, the third-party information claim also requires, in addition to the provision of the service on a "commercial scale" by the third party, that the infringement itself has been committed on a "commercial scale." This is confirmed by the legislative materials. This requirement is already referred to in recital (14) of Directive 2004/48/EC of April 29, 2004. Even though the wording of Section 101(2) UrhG (German Copyright Act) in principle allows both interpretations, the German government's draft bill of April 20, 2007 (BT-Drs. 16, 5048; p. 49) expressly pointed out that the right to information from third parties requires an infringement on a "commercial scale" (see also LG Frankfurt, loc. cit.).
The characteristic of "commercial scale" differs from the action in commercial transactions previously required under Section 101a UrhG (old version) (cf. Kitz, loc. cit., p. 2375 with further references). The legislature took this term verbatim from Article 8(1)(c) of Directive 2004/48/EC. The term is not further clarified in either the directive or the explanatory memorandum to the law, although the problem was known and hotly debated during the legislative process (cf. Braun, juris PR-ITR 17/2008). In recital (14) of the Directive, the term is explained in more detail in connection with the infringements committed by the direct infringer. According to this, infringements committed on an "industrial scale" are characterized by the fact that they are committed for the purpose of obtaining a direct or indirect economic or commercial advantage. Based on recital (14) of Directive 2004/48/EC, the explanatory memorandum assumes that actions carried out in good faith by end users are not generally covered by this provision. The term "commercial scale" must therefore be interpreted restrictively to mean that the infringement must be of a significant nature. This restriction at least clarifies that illegal copies and distribution on the Internet (e.g., via file-sharing networks) must reach a scale that exceeds what would correspond to private or other personal use. Contrary to the recommendation of the Bundesrat (BT-Drs. 16/5048, pp. 59/60), the legislature has therefore not waived the restrictive feature. In view of the often unclear copyright situation on the Internet, where there are also a large number of unprotected works (e.g., computer games, music pieces, and other software), there would otherwise be a risk that bona fide users would be exposed to a general suspicion of criminal activity or would be unjustly threatened with substantial financial claims for damages by rights holders.
In the event of a copyright infringement, Section 101 (1) sentence 2 UrhG clarifies that the criterion of "commercial scale" is not determined solely by the number of infringements, but that the severity of the infringements can also justify the existence of a "commercial scale." According to the recommendation of the Bundestag's Legal Affairs Committee of April 9, 2008 (BT-Drs. 16, 8783, p. 50), the latter could be the case in particular if, for example, a complete music album were made available on the Internet before or immediately after its release in Germany.
Taking these principles into account, the Regional Court rightly concluded that the downloading and uploading of copyright-protected data by the respondent's customers hidden behind the IP addresses provided did not constitute "commercial scale" in the present case. The applicant did not claim a large number of downloads and uploads. A single download and/or upload of files cannot in itself constitute "commercial scale," even if this takes place on an Internet file-sharing platform. This is not contradicted by the applicant's argument that, for technical reasons, it is not possible to prove more than the simultaneous offering of a work, i.e., a large number of infringements, on Internet file-sharing platforms. The Federal Council had already recognized this problem in its recommendation (BT-Drs. 16/5058, pp. 59/60) and, as explained, recommended waiving the restriction for this reason. The legislature did not follow this recommendation. If the legislature had wanted to allow a single "download" and/or "upload" to be sufficient on its own, it would have waived the restrictive criterion of "commercial scale." The Senate does not have to decide on the number of "downloads" and "uploads" that would constitute "commercial scale." However, the numbers cited by the Regional Court as criteria for assuming "commercial scale" (3,000 pieces of music and 200 films), based on the practice of public prosecutors, appear to the Senate to be impractical.
Furthermore, the severity of the infringement in the individual case under review is not sufficient to assume "commercial scale." At the time of the alleged copyright infringement, the computer game had already been on the market for just under three months. The applicant has not demonstrated any circumstances that could justify a particular severity of the infringement. For example, there are no indications that her game is a product so well positioned on the market that the assumption of "commercial scale" would be readily justified even in the case of a "download" and/or "upload." Furthermore, in the present case, it had to be taken into account that the applicant deliberately did not provide its product with copy protection, which it expressly points out on its website and encourages comments on. By waiving this protection and specifically advertising this business policy, the applicant has made it considerably easier to produce pirated copies of its product and, to a certain extent, has also accepted this, which precludes the assumption of a severity of infringement justifying "commercial scale" in this specific case.
2. The respondent's appeal against the Regional Court's decision on costs is to be regarded as an admissible dependent appeal in accordance with Section 20a FGG. However, it is unfounded. Contrary to the appellant's legal opinion, Section 101 (9) sentence 5 UrhG (German Copyright Act) merely refers to "costs," meaning the court costs pursuant to Section 128 c KostO (German Court Costs Act) (EUR 200.00). The reimbursement of extrajudicial costs is not regulated, so that the Regional Court rightly applied § 13a FGG and refused to impose the extrajudicial costs of the first instance proceedings on the applicant with valid reasons.
3. The decision on costs is based on Section 101 (9) sentence 5 UrhG, Sections 131 (1), 131 a (2), 128 c KostO, Section 13 a (1) sentence 2 FGG.
4. The Senate determined the value of the matter on the basis of Section 23 (3) RVG, Section 30 KostO (appeal €4,000, cross-appeal €500).
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.