Germany: Auctioning an Opportunity to Shake Down Filesharers …

Over the last two weeks I have been catching up on developments in the copyright enforcement area with a view to writing another boring post about it. But an absurd and scandalous story from Germany requires an entry all to itself.

Abmahnkanzlei: Shock Troops of the Enforcement Machinery?
In Germany there exists a form of legal practice known as as an “Abmahnkanzlei“, which would literally be a legal practice which makes orders to cease, desist and compensate (Abmahnung). These have been employed by copyright owners as agents to pursue filesharers. The procedure is familiar: internet protocol addresses are collected through online monitoring; rightsholders or their agents seek a court order directing the identification of the subscriber names behind the IP address. At this point the abmahnkanzlei sends a letter to the subscriber demanding compensation and a written commitment to stop the infringing activity. The sum demanded varies according to the copyright owner involved. Apparently porn producers insist on more money than the music companies, which figures, given the potential to implicitly blackmail subscribers by revealing their identities and alleged sexual proclivities in court.

The online news portal Heise has now reported that in the last days one of the large abmahnkanzlei, Urmann + Collegen in Regensburg, has announced that it is auctioning off the right to pursue 70,000 subscribers who have already been mailed two demands and have refused to pay up. Within their system a first demand was for a sum of 650 euros. If no settlement was forthcoming, a second letter was sent demanding 1286 euros. These 70,000 letters thus have a notional value of 90 million euros. Presumably whatever amount is coerced through this sum is to be split between the issuers of the ‘warnings’ and the owners of the copyright.

An additional, and perverse, twist to this process is that there are firms specialising in contesting these claims, who offer to handle pending and future cases for a fee which ranges between 500 and 650 euros – and thousands of people have signed up. The whole setup has become a racket whose only beneficiaries apparently are lawyers.

In a hearing hosted by the European Commission last June, the Association of the German Internet Industry, ECO, reported that German Courts are now directing the release of up to 5000 subscriber identities in one hearing. They also said, and I will try and verify these figures, that ISPs are being required to identify 300,000 people per month. Obviously these are huge numbers, and one wonders why this is not a bigger issue in public discussion.

Whither Privacy?
One also wonders where the German Data Protection Authorities are in all this; in 2010 the Swiss Supreme Court ordered a company, Logistep, which does network monitoring for copyright owners with a view to instigating enforcement proceedings, was ordered to cease (see also analysis from a Swiss legal practice and Ars Technica). The case was taken by the Swiss Federal Data Protection agency. Switzerland of course is not in the EU, and the law is different, but there have been cases refusing to release subscriber information in other EU jurisdictions such as Austria and Spain.

In any case, the gigantic scale of this campaign perhaps provides another element of the explanation for the sharp increase in support for the Pirate Party. Despite it not having been a widely discussed topic during the election campaign, there are undoubtedly a lot of people who are furious about all this.