Report from the Field: Filesharing in Germany and Unterlassungserklärung (cease-and-desist declaration)

MPP candidates at the School of Public Policy and Governance have the opportunity to study abroad in their second year of studies. This year, we are featuring these students’ experiences in a mini-series: Report from the Field. Nina Arbabzadeh was on exchange at the Hertie School of Governance in Berlin, Germany.

Nina Arbabzadeh

Before leaving for Berlin, I told my mom that I’ll be coming home with a special souvenir, which awakened some of her deepest motherly fears, as one can imagine! In my mind, the souvenir could have potentially been a Bauhaus haircut, or even getting inked at a parlour in Neukoellin, where all the cool kids hang.

I indeed am coming home with a souvenir. Sadly, it’s none of the above. I’ve managed to return to Toronto with a copyright lawsuit.

In October and on behalf of Universal Music, a law firm in Hamburg sued me for the illegal download/upload of Frank Ocean’s “Channel Orange”.  The notice arrived in a twelve-page letter, with the time and the date of the activity, attached to a cease-and-desist letter. The most painful part is the 1200 euro penalty fine! I have cursed the four words frank, ocean, channel, and orange a million times for almost three months now.

Little did I know that a lot of Germans are signing cease-and-desist declarations these days, promising never to illegally download music again. For four years, over half a million Germans share the same experience each year. Both prosecuting and defending filesharing has become a lucrative business. Seeking legal advice over the issue can cost you at least a few hundred euros, and the total of penalty claims for illegal filesharing amounts to nearly 400 million euros. The fine is sought by legal firms all across Germany for a few of the biggest and most well-known copyright holders and music distributors.

They catch you through a standard procedure. Copyright holders commission the law firms, who then commission internet monitoring companies to search the filesharing networks, such as BitTorrent or Vuze. With each illegal activity, the monitors capture an IP address, a date and a time. The copyright law firms are already in possession of a court order, and require internet service providers (ISP) to disclose personal information (such as a person’s address). In the end they simply implicate whoever owns the internet connection.

Based on the German legal term Störerhaftung – breach of duty of care – internet connection owners and address holders have a legal responsibility to monitor their internet use. Moreover, landlords, parents, or businesses (such as cafes with free WiFi access) that are registered as account holders, have the sole responsibility of educating their tenants, children, and customers about German copyright laws; tough luck if you don’t know the ins and outs.

A few years ago, the fines were more exorbitant, and the state prosecutors searched people’s homes with a warrant looking for evidence. The fees have dropped, and the cases are now treated as civil cases, but the claims have become more numerous and the law firms more persistent. There is still significant money to be made for giant copyright holders, lawyers and internet monitors.

At the end of it all, there is conciliation in knowing of a shared need to change the law. Piraten or the Pirate Party of Germany was born claiming that in a way or another, deliberately or unintentionally we are copying data when using the internet – ‘that copying data is the fundamental function of the internet’. In solidarity with Piraten I share the message that Germany needs ‘a new legal way of dealing with digital data’.

Some of the statistics and information were taken from “The Lowdown on Downloads” by Ben Knight (Feb 2012) Exberliner Magazine, http://www.exberliner.com/articles/the-lowdown-on-downloads/page-2.html

Currently a second year MPP candidate at University of Toronto’s School of Public Policy and Governance, Nina Arbabzadeh Holds an MSc. in International Political Economy from London School of Economics and Political Science. She spent the summer at the Ontario Ministry of Finance, working for the Personal Income Tax Design Unit.

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6 responses to “Report from the Field: Filesharing in Germany and Unterlassungserklärung (cease-and-desist declaration)

    • I guess that’ll cost ya some euros to find out! It’s troubling that a big way to compensate people for their work being shared online is through lawsuits – although I guess I’m assuming the claims are somehow shared between artists and firms.

  1. Did you pay the fine? Or did you seek advice from a German lawyer? I am with overseas stationed in Germany with the military, and a visitor of ours downloaded an album, leaving us with a bill of 1200 euros. I do not know what to do, and being American in the middle of Smalltown, Germany-nobody seems like they can help. Please help, its URGENT!

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