After Wikipedia’s blackout in protest of SOPA on January 18 and the arrest of German Megaupload king Kim Schmitz in New Zealand a few days later, the world has been debating online piracy. In Germany, an entire legal industry has grown around illegal music and film downloads, with hundreds of thousands of users targeted by enterprising lawyers every year. Ben Knight follows the money.
Rachel’s story sounds pretty familiar. “About three years ago, when I was living in Schöneberg, my boyfriend downloaded The Baader Meinhof Complex. I think he used Pirate Bay. Around three months later, after we’d moved out, I got a call from the landlady, and she was pretty raging. She’d received a letter from a lawyer in Munich and was fined €956 for illegally downloading. I denied all knowledge – my boyfriend had moved back to the UK by then, and I hadn’t even seen the bloody movie.”
Nick’s story feels equally well worn. “I was working in a bar in Mitte. I didn’t have internet at home for around six months, but we had wireless at the bar, so during my day shifts I would fire up BitTorrent in the morning to download music and movies. I would have been downloading, say, five to seven movies per week.
“Around four or five months after I stopped, my boss got a letter from a legal firm in Bavaria detailing the movie (a German film), the amount of megabytes and the exact times that the download started and finished. The fine amounted to approximately €450 and the lawyers’ fees approximately €500.”
So what did Nick do? “Initially I shat myself and agreed, at my boss’ request, to set up some kind of payment plan with the fuckers.”
Over half a million Germans every year can tell the same story – often down to the details: the same movies, the same law firms, the same monetary demands. Over half take the hit, pay up and sign a cease-and-desist declaration (Unterlassungserklärung) promising never to do it again.
Most of the other half seek legal advice, and end up signing a modified cease-and-desist declaration (modifizierte Unterlassungserklärung) for a lesser penalty – and then there’s a sliver of a minority who ignore the letters and hope it goes away. This last group includes both Rachel and Nick.
Nick goes on: “When I called them to set up the payment plan, the lady on the other end of the line went quiet when I mentioned transferring the documents into my name. She said that whilst the money could come from my account, legally there was no way of transferring the ‘guilt’ into my name, because my boss was the one with the internet account. At this point, I realised that all I had at stake was my shitty job at a shitty bar, and chuckling heartily to myself, simply replaced the receiver.”
Even though Nick says he knows “a couple of other people who completely ignored the letters and they eventually dried up,” lawyers agree that this is emphatically not what you should do.
Christian Solmecke, who specialises in defending filesharers, says, “Putting your head in the sand can get very expensive, because then the plaintiff’s lawyers can call for a quick court case – and then you can end up with costs of €10,000.”
But then, people like Solmecke would say that: in the past four years prosecuting and defending illegal filesharers has become extremely lucrative for Germany’s lawyers.
In one corner, you have companies like Solmecke’s firm Wilde Beuger Solmecke, which has represented 15,000 Germans who have received cease-and-desist letters from lawyers – each paying fees of at least a couple of hundred euros. He says that in the five years that his firm has specialised in filesharing cases, 2011 set a new record for cease-and-desist letters.
In the opposite corner, representing the world’s media distributors and copyright owners, other law firms have been sending out cease-and-desist letters with demands totalling well over €400 million a year.
The filesharing fog
There are few issues that generate as many myths, second-hand anecdotes, ambiguous statistics, and half-remembered facts as filesharing. It’s an area of common experience obscured by a dense legal fog.
Some contend that downloading is legal, while uploading is illegal – others are sure that downloading is illegal, but streaming is legal. And others promise blithely that the cease-and-desist letters are just meant to scare you off, and don’t really mean anything. Just throw them in the bin.
But Arno Lampmann, partner at legal firm Lampmann, Behn and Rosenbaum, says there’s one basic thing you should know – German copyright law makes almost all filesharing, downloading and streaming fundamentally illegal. The devil is in the exceptions (see “What’s legal and what’s not?”).
All peer-to-peer filesharing services – Pirate Bay, BitTorrent, Thebox.bz, etc. – work by making ‘peers’, or users, upload files – ‘seed’ – at the same time as they’re downloading or ‘leeching’ them (many give you extra credit and privileges the more you seed).
Even though both activities are illegal, uploading, unlike downloading, is subject to no copyright exceptions, so it is more commonly prosecuted.
“A lot of people don’t understand – or don’t want to understand – it’s not about the download,” says Lampmann. “It’s the upload – the second you upload a song or a film, you have released it to the world – which you are not entitled to do.”
Culture changes the law
Things have changed a lot since the shadowy powers of copyright began pursuing filesharers about five years ago. Nowadays, they are generally dealt with as civil cases, but when filesharers were first pursued in 2005 and 2006, the authorities took an interest – state prosecutors would search people’s homes and confiscate computers as evidence.
“But the more something becomes culturally acceptable, the less the state wants to intervene,” says Lampmann. “At first, copyright holders would demand €6000, and they would get it with no trouble. The authorities would march into your home with a search warrant because you’d downloaded 20 songs. But now there are so many filesharers that for that to happen you’d have to have raised the suspicion that you’ve started your own filesharing website. It’s like crossing the street at a red light. You do it in Berlin and no one cares – you do it on a summer afternoon in Bad Kreuznach and you get a €50 ticket.”
Now, the whole operation has become slicker and more professionalised. Fewer firms send out the letters, but they do it more persistently. If you are unfortunate enough to have got one, it is likely to be from one of five large firms – Waldorf Frommer of Munich, Rasch of Hamburg, BaumgartenBrandt of Berlin, Nümann+Lang of Karlsruhe, or U+C of Regensburg.
These firms, who represent large and renowned copyright holders, including major European film producers like Constantin (who made The Baader Meinhof Complex), together send out more than half of all the cease-and-desist letters.
How they get you
It’s a complex standard procedure: the copyright holders commission law firms to pursue violators, who in turn commission internet monitoring companies (such as Evidenzia and the Austrian IPSolutions), who trawl the filesharing networks.
Often these firms search for specific films – since they want to catch as many people as possible to maximise their profit, they naturally pursue the latest, hottest, most talked-about movie. That means you’re a lot more likely to get collared if you’re downloading the latest Harry Potter, rather than an Eastern European TV show from the 1980s.
But it can also work the other way – sometimes the pursuit is initiated by the monitors. Lampmann says, “The monitoring companies can go to the copyright holders and say, ‘Look, we scanned for Pirates of the Caribbean, and found a thousand people downloading and uploading it. There’s money in it for you – don’t you want to do something about it?’ That happens all the time, and I think that’s fine – that’s them just advertising their services.”
But, no third party – not the monitoring company, not a lawyer – is allowed to find out who those thousand people are and write them a cease-and-desist letter. If the copyright holder wants to prosecute, they have to initiate the claim, and they need court permission to get a filesharer’s real address.
The monitor takes a screenshot of the filesharer’s IP address, plus the date and the time of the upload, and hands it to the copyright holder. Then the copyright holder applies for the necessary court order to get the internet service provider (ISP) to provide the violator’s real address. Then the nasty letters go out.
Even armed with all the facts – and the cease-and-desist letter usually comes with a 20-page document that unforgivingly lays out all the dirty details of your upload – the combination of communal living and wireless internet means that the law has trouble proving that any one person is responsible.
That is where something called Störerhaftung comes in. This obscure German legal term – roughly equivalent to “liability for interference” – means that whoever is registered at an address is responsible for how internet is used there.
In effect, parents/bosses/subletters have a legal responsibility to monitor their download-happy children/employees/tenants and teach them the ins and outs of German copyright law, and to block portals if necessary. If they don’t know how to do it, they are legally obliged to pay an IT expert to do it for them. Good luck.
For Solmecke, this procedure is vulnerable to human error. “It’s all theoretically legal, but in many individual cases I have my doubts that the court orders forcing ISPs to give out people’s real addresses were right and proper,” he said. “We have uncovered a lot of mistakes in the applications to the courts,” he added. “For example, proxy IP addresses have been handed in, or the wrong downloads connected to the wrong people.”
This is why Solmecke’s firm currently finds itself representing a disabled woman in Munich who was ordered to pay €651.80 for downloading a film about football hooligans in January 2010 – even though she doesn’t own a computer or a wireless internet router.
“It’s one of the typical mistakes,” says Solmecke. “The poor woman – how was it supposed to be her fault? The judge said, ‘I don’t care how it happened – it’s up to her to tell us how it happened.’ But that’s wrong – it’s up to the investigators to prove it was her, not the other way round.”
“The problem facing the German courts is that they get thousands of such cases, and they have to make quick decisions, so these errors happen,” he says.
Copying data is the fundamental function of internet
But the sheer mass of filesharing is not the fundamental problem. The deeper one is that copyright law has no real handle on the internet – hence the myriad grey areas and exceptions. It’s an issue that gave birth to the latest significant political party in Germany – the Pirates.
“The function of copying data is the function of the internet,” says Martin Delius, of the Berlin Pirate Party. “Every time I click on something on the internet, I am copying data. I can’t not copy something.”
“Legally, all it takes is to be connected to another IP address for a few seconds sharing data, and you’re liable to get a cease-and-desist letter,” he continues. “I think almost everyone who has used the internet for any length of time has been an illegal filesharer in some sense at some point or another. What we need is a new legal way of dealing with digital data.”
With the increasingly likely prospect of angry copyright holders and grasping lawyers getting on one’s case, it’s no wonder that more and more people are getting their online movies from the above-board side of the internet.
Like the legal arm of the filesharing industry, this sector is professionalising fast in Germany. International sites like Amazon’s Lovefilm have recently launched legal on-demand services here, but home-grown companies are also getting in on the game. Natalie Gravenor runs realeyz.tv, a Berlin-based video-on-demand pay platform for art-house cinema and creative documentaries – it has only been running since 2009.
“Other specialised platforms were adjuncts of institutions or festivals, and were more like afterthoughts,” she says. “It’s not like we invented it, but we collected one of the first independent archives.”
“Of course you have to accept there are people who are not prepared on principle to pay for content on the internet,” she admits. “They’re always going to exist and you’re not going to convince them.”
But then again, especially with companies like realeyz.tv, there are moral benefits too: “We offer a lot of films straight from the filmmakers, or from smaller production companies, or from ‘boutique’ distributors with their own unique curatorial identity. And people know that, okay, it costs a bit of money, but that goes back into the work of filmmakers they find interesting.”
So if you don’t feel like pouring your cash into the pockets of a bunch of cunning, avaricious lawyers – why not throw a few scraps to a needy artist instead? A realeyz.tv subscription is a pretty reasonable €2.90 a month.