Reference number:
3 W 184/08
6 0 325/08 Frankenthal District Court (Pfalz)
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alt="Coat of arms of Rhineland-Palatinate" />
Palatinate Higher Regional Court,
Zweibrücken
decision
In the proceedings
...
Applicant, complainant and respondent to the cross-appeal, represented by: Lawyers
against
...
Respondent, Respondent to the Complaint and Additional Respondent to the Complaint
, represented by Caspers and Koll., Lawyers, Rudolf-Virchow-Str. 11, 56073 Koblenz,
concerning an order under Section 101 (9) UrhG,
the Third Civil Senate of the Palatinate Higher Regional Court of Zweibrücken, through the President of the Higher Regional Court Dury, the judges at the Higher Regional Court Simon-Bach and the judge at the Regional Court Gietzen on the applicant's immediate appeal of September 30, 2008 and the defendant's cross-appeal of October 6, 2008 against the procedural representativethe decision of the 6th Civil Chamber of the Frankenthal (Pfalz) District Court of September 15, 2008, served on the parties authorized to represent in the proceedings on September 17 and 19, 2008
without an oral hearing on October 27, 2008
:
The applicant's immediate appeal is dismissed.
The cross-appeal of the respondent is dismissed.
The applicant shall bear the court costs incurred under §§ 131 a (2), 128c (2) KostO. The out-of-court costs incurred by the respondent in the proceedings for the immediate appeal shall be borne by the applicant at 90%.
The respondent shall bear the court costs incurred as a result of the cross-appeal. The respondent shall bear 10% of the applicant's out-of-court costs in the proceedings for the immediate appeal.
The value of the subject matter of the appeal is set at
4,500 euros.
Reasons:
I.
The claimant develops and markets computer and video games, among other things. The defendant is an internet provider.
The so-called "anti-piracy company L from Switzerland has determined on behalf of the applicant that on August 28 and 29, 2008, various Internet users under the IP addresses listed in detail, provided by the defendant as a provider, a file designated as "E" or "w" file via the so-called peer-to-peer network "BitTorrent" to other users for downloading and thus made it publicly available.
On its website, the claimant advertises the fact that it deliberately refrained from providing the game with copy protection. In a statement by the claimant dated May 13, 2008, which it submitted with the written submission of September 3, 2008 as Exhibit AST 9, it states that the technical implementation of a copy protection makes no sense in view of the costs and effort involved, which is ultimately circumvented by pirate copiers in most cases. At the same time, she called for feedback on her decision in this statement.
The Petitioner has submitted that it is the owner of the exclusive rights of use and exploitation in the computer game "E", which has been available on the market since June 5, 2008. The files mentioned are complete and functional versions of this computer game. This is certain based on the hash values determined. In the present case, two different hash values were determined, which is due to the fact that a total of five different versions of the game "E" are in circulation, which differ not in content but in file size and therefore have different hash values. The infringement of their intellectual property rights by the users active on the Internet at the specified times under the respective IP addresses was obvious. This also applies to the case that the infringing act was not carried out by the owner of the connection, but by a third party using the Internet access, due to the owner's duty of inspection. The owner of the connection is responsible for the actions carried out via "his" Internet connections, even if his (unencrypted) WLAN access is misused by unknown third parties, because it is technically possible and reasonable for each owner to protect the access from misuse by suitable encryption measures. The users behind the reported IP addresses had provided services used for infringing activities on a "commercial scale" by making the aforementioned files available to other Internet users for "downloading" . The necessary "commercial scale", which can be derived from the number and severity of the infringements, arises here from the fact that the program provided for download is a current product.
The applicant requested in the first instance that to oblige the defendant to provide her with information – including, if necessary, the use of traffic data – about the full names and addresses of the persons to whom, in the context of using the service provided by the defendant, the IP addresses shown in the list marked AST 7 were assigned at the respective times shown.
The defendant requested that the application be dismissed and argued that the software used by L did not work "correctly without exception". Rather, it was not possible to rule out errors, operating errors and manipulation. In addition, when a file is uploaded to a file-sharing program, each user can technically prevent the downloading of this file by making the appropriate settings, so that it cannot automatically be assumed that the applicant's program was actually available for downloading in the above cases. Furthermore, when third parties use an Internet connection, there are no suitable protective measures to prevent the installation and use of file-sharing software. There is no presumption that the respective subscriber used the connection in a specific way. 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 the existence of a criminal offense pursuant to § 100 a sentence 2 StPO.
The District Court rejected the application as unfounded in its decision of September 15, 2008. In its reasoning, it essentially stated that there was no evidence of copyright infringement on a "commercial scale". Although this term is unclear, the requirements of the criterion "commercial scale" in connection with the copyright claim for information are in any case not fulfilled in the present case. Even if the game, which had been available on the market for just under three months at the time of the download offer, was still a relatively new product – despite the fast pace of the software market – the mere offer of a program package worth around €25 or part thereof cannot be taken to indicate a particularly serious infringement against third-party copyrights, which in turn could possibly indicate commercial activity on the part of the infringer. The number of files provided (here: one program file) could also not be used to conclude that there was "commercial scale".
The applicant's immediate appeal is directed against this. It considers the decision to be legally flawed and, with its appeal, seeks a court order that the use of traffic data is permissible. The respondent has lodged an immediate appeal against the decision of the Regional Court, which contains no decision on costs with reference to Section 101 (9) sentence 5 UrhG and Section 13a of the Introductory Act to the German Civil Procedure Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch; "EGBG"), requesting that her out-of-court costs be imposed on the applicant.
II.
1. The immediate appeal of the applicant is not to be objected to from a procedural point of view (section 101 (9) sentence 6 UrhG, section 22 FGG).
The immediate appeal is unfounded on the merits.
The district court was correct in rejecting the claimant's right to information.
The District Court correctly assumed that the application was admissible under Section 101 (9) UrhG. The dynamic IP addresses necessary 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 § 3 No. 30 TKG, traffic data is data that is collected, processed or used in the provision of a telecommunications service. The user's name and address and the tariff option are therefore inventory data. Dynamic IP addresses are used to provide telecommunications services and are therefore traffic data. This traffic data may only be collected by court order. The name information links the IP address with a person and thus with a specific usage process and time. The assignment to the dynamic IP address is a use of the IP address that touches on and reveals the circumstances of a telecommunications process (see Begr. z. RegE, BT-Drs. 16/5048, p. 59 re § 101.2 UrhG; Kitz, NJW 2008, 2374, 2376; Hören, NJW 2008, 3099, 3100; LG Darmstadt, K&R 2006, 290 et seq. = MMR 2006, 330 et seq. = GRUR-RR 2006, 173, 174; dissenting opinion: District Court Offenburg, decision of April 17, 2008 -3 Qs 83/07).
The district court was correct in denying the existence of the requirements of § 101 (9) TKG.
It can be left open whether the application is unfounded for the sole reason that the data may have been deleted in the meantime and that any claim for information may therefore have been settled. It cannot be assumed that the data will be deleted. In proceedings for a temporary injunction, it may be correct when examining a reason for the injunction to refer to the court's knowledge that the traffic data in question is usually deleted after seven days at the latest (see Regional Court of Cologne, decision of September 2, 2008, Az. 28 AR 4/08; LG Frankfurt, decision of September 18, 2008, Az. 2-06 O 534/06). In the present case, however, the application is no longer being pursued in summary proceedings and the defendant (provider) has been granted a legal hearing. The defendant did not claim that it was no longer in possession of the data, but rather, in its written submission of October 13, 2008, p. 19 (p. 213 of the annex) merely stated that Internet service providers only store traffic data for a few days, a maximum of five to seven days; this is generally known in the industry and also known to the applicant. Therefore, the requests "could" have been settled in the meantime. However, the Senate - and the Petitioner - are not aware whether the Respondent actually still had the data in question stored. The Petitioner is alleged to have made "downloads" and "uploads" on August 28 and 29, 2008. With regard to the Internet connection in question,longer storage of the data in accordance with § 96 ff TKG is necessary, for example for invoicing, or whether it is a flat-rate connection, for which a correspondingly shorter storage period is generally permissible (see on this the Regional Court of Darmstadt, loc. cit.), has not been argued. Accordingly, it cannot be assumed that the claim for information has been settled.
On the basis of the applicant's prima facie evidence, it can also be assumed that the applicant is the owner of the copyrights to the computer game program E.
Whether it can also be assumed in her favor that, under the determined IP addresses at the communicated times, active customers of the respondent made a file covered by the applicant's copyright available for download on the Internet 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, according to the applicant's submission, the files provided for download also had different hash values, which could prevent the copyrighted game file from being clearly identified. Ultimately, this question, like the question of whether there was an obvious infringement by the owners of the respective Internet connections within the meaning of Section 101 (2) sentence 1 UrhG, can also be left open.
In any case, the applicant has not substantiated an act of infringement on a "commercial scale".
The Senate agrees with the Chamber's interpretation of the term "commercial scale" in the present case. Contrary to the applicant's legal interpretation, the right to third-party information also requires, in addition to the service being provided by the third party on a "commercial scale", that the infringement itself has been committed on a "commercial scale". This is substantiated 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 basically allows for both interpretations, the Federal Government's draft law of April 20, 2007 (BT-Drs. 16, 5048; p. 49) expressly pointed out that the right to third-party information requires an act of infringement on an "industrial scale" (see also Frankfurt District Court, loc. cit.).
The characteristic "commercial scale" differs from the previously required action in the course of trade according to Section 101 a UrHG (cf. Kitz, loc. cit., p. 2375 with further references). The legislator has taken this term literally from Art. 8 (1) (c) of Directive 2004/48/EC. The term is not defined in more detail either in the directive or in the explanatory memorandum, although the problem was well known and highly controversial in the legislative process (see 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 carried out on a "commercial scale" are characterized by the fact that they are carried out 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 acts carried out in good faith by end users are not normally covered by this. The term "commercial scale" must therefore be interpreted restrictively to mean that there must be an infringement of a substantial nature. This restriction makes it clear that, in the case of illegal copying and distribution on the internet (e.g. via file-sharing networks), a volume must be reached that goes beyond what would correspond to use for private or other personal use. Contrary to the recommendation of the Bundesrat (BT-Drs. 16/5048, pp. 59/60), the legislator has therefore not dispensed with the restrictive criterion. In view of the often unclear copyright situation on the Internet, which also contains a large number of unprotected works (e.g. computer games, pieces of music and other software), it would otherwise be to be feared that bona fide users would find themselves under general suspicion of a criminal offense or would be threatened with unjustified substantial financial claims for damages by rights holders.
In the event of an infringement, Section 101 (1) sentence 2 UrhG clarifies that for the characteristic of "commercial scale", not only the number of infringements should be decisive, but also the severity of the infringements can establish the existence of an "commercial scale". The lattercan be the case, in particular, if, for example, a complete music album were made available on the internet in Germany before or immediately after its publication, according to the recommendation of the Bundestag Legal Affairs Committee of April 9, 2008 (BT-Drs. 16, 8783, p. 50).
In accordance with these principles, the Regional Court was correct in its conclusion that the "commercial scale" of the downloading and uploading of copyright-protected data by the defendant's customers behind the disclosed IP addresses was not present in the case at hand. The claimant has not alleged a large number of "downloads" and "uploads". A single download and/or upload of files cannot in itself constitute a "commercial scale", even if it occurs on an internet file-sharing platform. The applicant's submission that it is not possible for technical reasons to prove more than the simultaneous offering of a work, i.e. a large number of infringements, in Internet file-sharing networks does not conflict with this. The Bundesrat (Federal Council) had already recognized this problem in its recommendation (BT-Drs. 16/5058, pp. 59/60) and therefore, as explained, recommended that the restriction be waived. In the end, the legislature did not follow this. If the legislator had wanted to allow a one-time "download" and/or "upload" on its own, it would have waived the restrictive characteristic of "commercial scale". It is not for the court to decide what constitutes a "commercial scale" based on the number of downloads and uploads. However, the numbers mentioned by the district court as a criterion for assuming "commercial scale" (3,000 pieces of music and 200 films), based on the practice of the public prosecutor's office, do not appear very practical to the court.
But even the severity of the infringement in the individual case under consideration is not sufficient to assume a "commercial scale". At the time of the alleged copyright infringement, the computer game had already been on the market for almost three months. The claimant has not presented any circumstances that could justify a particularly serious infringement. For example, there is no evidence to suggest that her game is so well positioned on the market that the assumption of a "commercial scale" would be readily justified simply by a "down" and/or "upload" operation. Furthermore, it had to be taken into account for the present individual case that the claimant deliberately did not provide her product with copy protection, which she explicitly points out on her website and encourages comments on. By refraining from using copy protection and deliberately promoting this business policy, the complainant has significantly simplified the process of making pirate copies of its product and, to a certain extent, accepted the fact that the severity of the infringement in this specific case precludes the assumption of a "commercial scale".
2. The respondent's appeal against the Regional Court's decision on costs is to be regarded as a permissible, dependent cross-appeal with regard to section 20a of the Introductory Act to the German Code of Civil Procedure (Einführungsgesetz zum Bürgerlichen Gesetzbuch; FGG). However, it is unfounded. Contrary to the complainant's legal opinion, Section 101 (9) sentence 5 UrhG merely refers to the "costs", meaning the court costs pursuant to Section 128 c KostO (200.00 euros). The reimbursement of extrajudicial costs is not regulated, so that the district court rightly applied § 13a FGG and rejected the imposition of the extrajudicial costs of the first-instance proceedings on the applicant with good reason.
3. The decision on costs is based on Section 101 (9) sentence 5 UrhG, Section 131 (1), 131 a (2), 128 c KostO, Section 13 a (1) sentence 2 FGG.
4. The Senate has determined the value of the subject matter on the basis of § 23.3 of the German Lawyers' Fees Act (RVG) and § 30 of the German Cost Code (KostO) (appeal: €4,000; cross-appeal: €500).
Dury Simon-Bach Gietzen
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.