German court: Quality of files determines whether ISP should expose illegal filesharers

The district court in Munich, Germany has made a surprising judgement in a recent case of copyright infringement in a file sharing network. Should other judges in Germany share the views displayed in this decision, the German approach towards illegal file sharing will become a lot stricter.

Copyright holders often face difficulties catching an infringer, after unlawful conduct in a filesharing network is detected. Their problem is that they require the help of the internet service provider to establish the identity of the perpetrators. Under the German copyright act, a German ISP may only reveil subscriber information when the copyright law is violated "on a commercial scale". (§ 101 part 2 of the Copyright Act (UrhG))

Unfortunately, the German legislator has not defined what is meant by "commercial scale". So judges interpret the term themselves and reach different conclusions. As a result, the world of file sharing looks quite different in Munich since this week.

The Landgericht München has ruled on July 12 last (Case 7 O 1310-1311) that file sharing on a commercial scale already happens when a high quality file is made available online for free through a file sharing community. When the file comes from an illegal source, the ISP is allowed to pass on personal data of the subscriber to the copyright holder.

This decision is remarkable, because the interests of the music industry to fight against massive copyright infringement on the one hand, must always be weighed against the interests of individual internet users on the other hand. If someone uploads a few files of excellent quality in order to exchange them, that does not mean there is an underlying commercial motive. If that person builds a business around file sharing, it would be a different story. It would be more in line with the concept of commercial dealings in § 101-1 UrhG to regard the fact that the illicit conduct is a source of income for the perpetrator as a decisive element, rather than the quality of the files shared.

Although any distribution without permission from the copyright owner is obviously against the rules, the enforcement of the rules should always be a balancing act between the interests of the parties concerned. In any event: Copyright and online enforcement thereof, is changing fast in Germany. This has been acknowledged by the Bundestag, which recently found that the Copyright Act must be adapted to the Internet age.

Reference: Christian Solmecke

Read more about recent copyright developments in Germany on Future of Copyright:

- German Bundestag eases copyright protection for scientific purposes 

- Germany considers legalising downloads from illegal sources