Copyright Trolling, Streaming and The Archive AG v Redtube Users

Since December the law office of Urmann + Collegen have become notorious in Germany due to their action against alleged users of Redtube – a streaming site dedicated to pornography. Copyright enforcement has hitherto been limited to users of file-sharing systems and the operators of streaming sites such as Kino.to. Pursuit of those using streaming facilities would represent a new escalation. Major questions about the plausibility of the offense, the manner of the evidence collection, and the bona fides of the plaintiffs are tied up in this litigation. Hopefully the affair will help discredit the current system.

First a word about one of the protagonists: this is not the first time the spotlight has fallen on Urmann + Collegen. In 2011 I wrote about how they attempted to sell-off the right to pursue alleged copyright infringers for compensation and legal costs under the abmahnung procedure (these are letters which demand the recipient desist from specific behaviour and pay both the costs of the letter’s production and some compensation). By 2012 they were threatening to publish the names of all those unwilling to cough up the amount demanded in the abmahnung for downloading porno movies using bittorrent. The German Data Protection office had other ideas.

1. Origins of the Redtube Affair

In the most recent episode abmahnungen were mailed to ten thousand users whose names and addresses were acquired following an order by the Civil Court in Koln (historically especially amenable to copyright owners requests). They were alleged to have infringed copyright by viewing porno movies on the streaming website Redtube.  The action was launched  on behalf of on behalf of The Archive AG, a Swiss registered company purportedly the owner of films being made available on the redtube website. dresses collected on behalf of the owners of the infringed copyrights. Multiple chambers of the court granted the plaintiffs request to require ISPs to identify the users behind IP addresses collected on behalf of the owners of the infringed copyrights.

But how were these IP addresses acquired? Collecting such IP data from p2p users is trivial – you just need to connect to the peer to identify the IP. But when it comes to records of your website visits access to such information is limited to:(a) the site visited (b) your ISP which routes the request and (c) facebook and other companies with the capacity to exploit trackers (cookies, Javascript, 1-pixel beacons, and Iframes). Important as the last category is, it is not relevant to this instance.

Daniel Sebastian, a lawyer representing Archive AG, said that the IP data had been collected by a company called ‘itGuard’ who had used a piece of software called ‘GLADII 1.1.3’. This company was registered in Delaware in March 2013 but claims to be based in California. It turns out that The Archive AG’s website was registered that same month and that their website uses the same webserver as itGuard.

The Archive AG claimed to have purchased the rights to the infringed films in July of 2013. Around the same time the domain retdube.net was registered. Such site are often registered in order to capitalise on typing mistakes, or can be used by phishing/spam emails to draw traffic. One hypothesis is that this site (whose owners remain unidentified in a Panamanian registry) was set up to trap and track website users. Dates of the alleged infringements are consistent with this timeline.

The legal process began in August 2013 when Sebastian submitted a request for identifying information

The plaintiffs request for subscriber identification information was granted in September. The first letters went out in early December. There followed a flurry of actions including one undertaken by Redtube itself: on December 19th they obtained a decision from a Hamburg court ordering that no further abmahnung be issued to redtube users. However the real turning point came as the result of an appeal by four alleged Redtube users in mid-January. They argued that their information had been wrongly provided to the plaintiffs and in late January the Koln court upheld their appeal. For the moment this brings the substance of the case to a close. The flawed original decision by the various chambers of the Cologne Civil Court was based on numerous errors which it is worth itemising.

2. Confusion in Court: Streaming and Reproduction

Irrespective of the relationship between itGuard and The Archive AG, it appears that the Koln court which ordered that subscriber to be divulged was either confused or misled. They appear to have believed that Redtube was a filesharing system rather than a streaming service. Submissions to the court by their lawyer, Daniel Sebastian, reinforced this impression by referring to downloads rather than streams.

In a decision announced on January 27th the Court upheld an appeal by one of the recipients of the letters.  They stated that they had been confused by the use of the term download in the original application and that streaming has not been found to constitute an act of reproduction.

3. More Confusion: Acquiring the IP Addresses

In his original submissions to the Court in Cologne,  Sebastian included a document drawn up by a Munich patent attorney from the firm Diehl & Partner, verifying the proper functioning and reliability of the GLADII. Nowhere in this twelve page document is there any explanation as to how the software actually interacts with the target site to collect the user data.

When the Cologne Court issued its statement connected to the successful appeal by one of the abmahnung recipients, the Judge raised again the troublesome mystery of how the GLADII software functions and noted that requests for further information had gone unanswered:

“even after indication from the Court, the questions remains unanswered as to how the software program can access a two-sided communication.”

4. Doubts about Ownership

The Archive AG claimed that they had purchased the rights to ‘Amanda’s Secret’ and other clips from a Berlin firm, Hausner Productions, who supposedly bought them from their original producer, a Spanish firm Serrato Consultants. But Hausner Productions does not exist, and Serrato never produced these films, which were shot by a company in California who continue to commercialize them.

5. Fallout

As each day passes the affair unwinds further. Urmann is now facing an action taken by a Berlin firm on behalf of abmahnung recipients alleging extortion and fraud. Meanwhile at the The Archive AG it’s all go: they moved their HQ to a Swiss village called Weisselingen and their director, the German Phillip Wiik, has been replaced by a certain Djengue Nounagnon Sedjro Crespin, a native of Benin. Oh, and their phone number no longer functions and the website is offline. apparently Swiss authorities have started an investigation into the directors for fraud. a reader of the German magazine Telepolis visited the office address of the software developer ‘itGuard’ in San Jose and found only a supplier of office services who had rented a letterbox to a company of that name.

Conclusion

Amusing as the details of this scam are, and unpleasant as some of the characters in this story may be, the real issue here is the mindless machination of a copyright enforcement industry. By the end of 2012 this apparatus had produced more than four million abmahnungen: it is a crazed monster and out of control. On the basis of sketchy evidence, possibly gathered illegally, multiple chambers of the Cologne Civil Court ordered the identification of tens of thousands of users to a firm who did not have to prove they owned the rights – this is evidence of institutional dementia.

Lawyers have cranked this apparatus up because the business model produces a lot of money for them in fees, far more than that earned by any notional rightsholder. Thomas Urmann didn’t even bother checking if his clients actually owned the rights they claimed, just sent out the 20,000 letters and waited for the cash to roll in. In early January he was promising further letters in relation to other streaming sites. And if there are further ‘issues’? No problem, he says, ‘we’ve got full liability insurance’.

For years now there has been discussion of reform to eliminate such abuse, but in the SPD/CDU Coalition agreement there is no commitment to do anything other than investigate how the current system functions. Until the next time folks.