About the myth of the illegality of FileSharing systems according to German copyright law
Look at the latest since the score around the FileSharing systems such as Napster, Gnutella and Co. In June last year, the highlight has apparently set the amption that the P2P exchange of music and other content was unlawful and against copyright. This injustice awareness on the part of users was broken down by a study by the Gartner Group in the United States, after which, at least 28% of the users of FileSharing systems believe in the view are wrong, as many believe that this is not the case. Even gross is the skepticism towards the legalism of P2P usage in those who do not use such services (previously): 42% of all surveyed non-users were of the view, the copyright is injured during the music exchange by filesharing. The IFPI has also spread a lot of legal uncertainty with its warnings to German operators of homepages on the topic of FileSharing, as claimed, Napster is unlawful and the reference to their offer Konne to German law is being pursued.
Probably a corresponding survey with German file sharing users did not demand any other result for days. This is probably due to the fact that one believes in the media reports in which in this context almost unanimously of "unlawful actions by P2P", "banned" Etc. the speech is. Of course, this feeling will be caused by the well-known position of the industry. Also, the all-too-vision readiness of Napster, cooperations with the music industry do not respond to that that one goes out of a positive outcome of the processes. After all, this on the side of Napster is called to share the fruit of work with others without involuntarily to share without the legal situation being clarified.
From the sides of the (independent) lawyers, few well-founded exercises have become loud, which brought some light into the darkness. So far, the statements beside the mostly unreflected and little objective "Is everything forbidden"-Conclusion, which is surprised in the face of the topics of the topic. Apparently, most experts ame it is here a clear legal situation that it does not require a nearer analysis of the legal situation. That this does not happen from the industry-lawyers is obvious, expressly have little interest in rutting in general acceptance.
In order to catch up, I wrote a detailed legal opinion in the afternet in the legal magazine "Grur (commercial legal protection and copyright)" is published. The essential findings should be reproduced below. One thing in advance: Neither the claim that all systems are unlawful who are not operated by the legitimate, nor the use of Napster, Gnutella CO. violated copyright is correct. Just as wrong is the amption, you can see here a simple and unambiguous legal situation against.
Correctly, the general amption that copyright and performance rights in Germany is the legitimate principle to protect against the fact that their plants without permission are offered and downloaded via the Internet or a P2P network and then stored on the domestic computer or burned on a CD will. Copyright terminology refers to such storage actions as "Multiplication". They needed the consent of the author of the German Copyright Law of the Copyright Copyright Law, although self-consuming in the law, which was written in 1965, is not the speech of download, upload or compression.
The law is very openly formulated. The rule applies that "the authors to participate in any economically relevant recovery of his work". After this rule, the offer of a file, such as a music piece, over Napster or Gnutella, is also to be recorded copyright. For online offers, one speaks of a case of the "general right of public playback", according to § 15 (2) URHG, among other things, the broadcasting, public presentation, drafts, etc. comprising. This is similar here to the online offer says law. There is no special regulation so far, but it is already in planning and becomes the adoption of the "EU Copyright and Related Property Directive (= Expertise Properties, for example, the toner manufacturer and interpreter) in the information society" be implemented in the German urHG. Even if this is not the case right now, one comes around the application of copyright monopoly rights on online offers already not around.
The exception for private multiplications
This does not mean that FileSharing offers and uses are unlawful. Rather, copyright is subject to some exceptions from the loseconomic rights of the legitimate, which — despite new technology — also apply. According to such a regulation, legally "Cabinets" named, multiples in the private environment are permissible.
The barrier for private duvents, § 53 paragraph 1 URHG, is valid for storing a music piece on the hard drive, its compression, copy to another folder, the upload to a server and also the download from another computer and burning the stucco a CD. These actions are not forbidden, the lecturality right of the legitimate composers, musicians and record companies is disclosed here on a claim. In contrast, the right to prohibit such actions. This applies at least as long as how to consume his copies only or if necessary in the circle of friends.
Reason for such a rule is and was the realization that the use in the private environment is neither controlled nor allowed. However, the barrier for private duplication does not apply to copying software. Computer programs are excluded exactly like electronic databases from the rights to private duplication, which means that the exchange of such works over hotline or gnutella is illegal.
The fact that you do not have to ask the claimant before private duplication for permission, however, does not mean that the user does not pay for this purpose. Even if you do not consciously perceive this, you pay a flat-rate obolus to the artists and manufacturers in the form of so-called equipment and empty media levies. In the importation of such a billing system, which does not focus on individual use, one recognized at the time a suitable system to capture the uncontrollable private use economically without having to penetrate into the privacy of users. This situation has not changed until today.
It should be noted on the system flat and usable unloading models, one does not want to allow a legal side that at some point everyone carried out by the domestic computer is captured by whom is always recorded, logged and stored. Apart from the fact that safe systems that could do so, neither has existed to date nor evil whether it will ever give such systems, there were significant problems with other legal positions when attempting to enforce individual billing models. More specifically, the total monitoring of telecommunications transport and privacy are eliminated, quite apart from the data protection matters and the disturbing problem, which should be transferred to the storage and management of all these valuable and partly confidential personal data.
It is not to be dismissed by the hand that gardens and empty media levies have to expose themselves to the criticism, lump-sum and so partially unfair. The varied the uses of a device, the high the MAB of the lump sum. Very flat rate are therefore the highest controversial levies on CD burners and PCs, slightly less the for empty media such as CD-RS, MDS or similar. Many builders of such technologies then pay for nothing if they are copying the offer of copyright, for private purposes of other people copying works, do not accept.
However, one should consider which Ubel, measured with the monitoring of traffic, appears smaller. The alternative, instead of the levy nothing to pay, is not conceivable according to German law. The use of protected material will never be, the costs can only be moved, calculated differently and reduced. However, if no one pays more, no one will live more of music, graphics, photo and film and benefit, which will benefit the offer of such enjoyants at least significantly. Contrary to individual billing and temper, the indirect lump-sum factor is the best and only means to realize the necessary tempers for the artists, if such a mass and anonymous use takes place as at P2P.
Also a subscription service, as planned by Bertelsmann and Napster, was followed by this principle of lump-sum accounting. The incoming system of approval effort and individual, so useful whereability of multiplication acts, however, will fail in the FileSharing area. It is impossible before any use the legitimate (who is in the concrete case?) To ask if he agrees, as well, in the tremendous data rivers in such a system, it will not be possible to register, log and bill each individual use. Thus, the basic idea of the peer-to-peer-FileSharing was destroyed, apart from the fact that hardly any more such a system was used.
From the equipment and empty media charges every user pays, there is another conclusion. Although certain circles with legal discussions always claim the opposite: the user pays for his right to make copies, so he also has a right to make private copies in an appropriate scope. This scope is not exceeded if you consumes the music only at home alone or with his friends. One may argue about whether this is a principle of copyright or not. In any case, the charges had to be painted or steamed if the right to private duplication in certain areas was lifted or strongly enrolled.
Especially from the beneficiaries is always criticized that the levies are too low in order to compensate for the losses resulting from digital private duplication. This can only be said that the taxes are not a problem, an episis of the packaging records is not duty of users and private content providers. Only the claimants themselves can change here.
The exception for the offer of music by the P2P servant
Another bound of the copyright monopoly powers applies trap of public playback, such as the Internet or the P2P offer. According to § 52 Urhg, the obligation is subjected to the claimant for approval if the public reproduction of works takes place within the framework of an event, which serves no commercial purposes of the organizer and where everyone can participate free of charge. The organizer in this sense is the one who controls and influences the public reproduction of the works, which thus stages. This is at Napster and Gnutella the one who offers music for download on his private computer. Only servants can influence which music chocolates are offered and at what time.
The application of the provision is extremely complicated. On the other hand, there is no doubt about their applicability. The providers of the content with Napster or Gnutella follow no commercial purposes, at least not, as far as they are private individuals. Participation in the network is just as free as the identifiable client software. So inappropriate the regulation appears at first glance, it is so suitable for a closer look (perhaps the reason why she is apparently overlooking the legal statements on this topic…?To). According to this barrier rule, it is also possible in the corridor, according to the above exemptions, for the above-made private copies, for example, from the network-downloaded MP-3 files over the own computer to be downloaded for download, although they then leave the privacy. As a matter of principle, this is prohibited by § 53 (6) UrhG, which, on the other hand, only applies if § 52 UrhG does not prohibit the public reproduction and to be considered as priority.
Through this exception of the extremity of the right of public reproduction, in turn, only the obligation to obtain a consent from the claimant for this purpose. What remains is the duty to pay a whereabout. This has been collected from GEMA so far, which is hardly any more possible in FileSharing systems. In fact, the legitimate should look for the solution in subscription services, so in turn in billing systems that work flat-rate. The claims claim therefore exist and they remain. This does not mean that use will be illegal if the claim is not paid. Rather, in the usefulness of use of a legal license, the legalism of a file sharing offer is therefore explained by the law. This results in the right to the license of the individual. This right does not entitle the non-payment of the charges.
So it remains the following realization: if you participate in filesharing, this is legal because you do not need permission to do this. You can copy music (but not software) and pass on, but must pay for this purpose. For the copies, this has already done anyway who bought the storage devices and media. For the offer are payments to pay, whereby has not been clarified by the rights, how such by supply. A possibility of this could be done by the subscription allegations, as planned by Napster-Bertelsmann-Edel,.
Legal situation regarding the actions of Napster and providers of information sites over Filesharing
So it can not be a speech that music exchange over Filesharing is unlawful. As hard-snacked like this eye is still the one who is unlawful after the Napster is unlawful. For this purpose, it should be said that this amption does not apply to these or other client software or the operation of the servers or the search function. Neither the German urHG nor another law prohibits development, manufactures and supply of mechanisms that can be suitable for committing infringements in the application of infringements.
Thus, VCR and CD burners and not even double video recorders or copystations are to be legally objectionable, as well as by the and via the FileSharing systems — no matter how to see the legal situation discussed above — also completely legal Recycling actions are possible. They also happen as shown by the various traps where musicians or record companies have brought into circulation themselves in the P2P networks. FileSharing is a very future-oriented technology that can also be used in the concrete application, Napster and Gnutella, very effectively for marketing and advertising or as a purchase incentive. So it can not be a speech, this is banned, since only illegal depart.
In addition, neither Napster nor gnutella.or another informative web site for the actions of the users must adhere to, even if you have rising with industry, the actions of the participants violated copyright. Since none of the two shops themselves make up-to-copyright relevant variations or public reproductions, but only the environment for such actions to provide ratios or. Have information ready, home liability from the outset is not considered.
You could at best, you want to give the industry right in relation to the evaluation of the participating acts, Napster is liable because his users do illegal. Such deduced liability is available in German copyright law. However, this is only very crazy in the online area. The German legislator in the Teledienstegesetz has opted for those who only refer to foreign content or even deploying the infrastructure for online offers and uses, even if the use or content is unlawful. This also applies if you have switched to the left side on your side or throws keywords that refer to sites whose content is illegal.
At left, after the case-law raised so far, it is only liable for the foreign content, if one visual "succeed", So clearly let you know that you identify yourself, this is good-minded, etc. This was never possible to find information systems that are generally technologically oriented, and certainly not on search systems that automatically capture and output content (like the Napster search service). The offer of the Napster servers and other infrastructure is treated according to the teledienstegesetz as the access providing. The relevant liability rule shows that such access brokers do not even adhere to foreign legislation. Incidentally, the copyright does not arise otherwise regarding liability for illegal actions of others.
Withdrawing this is still to be noted that copyrights are always valid only within the national borders. Contrary to the obviously existing misalignment of some lawyers, it is therefore completely irrelevant for the legal situation in Germany, as the American judges decide in the Napster process, since there must be assessed after American and here under German law.
Filesharing is therefore allowed but not for nothing. The fact that many users do not want to accept the costlyness and would like to accept and be planned in view of a small fee of $ 5 as well as Napster and Bertelsmann, avert Emport, I’m sacrificent. In this case, the displeasure becomes clear here in the years of the years of patronization of users through the industry, which can be easily removed with a change to Gnutella.
It should be remembered, however, that music is not the same music industry. Rather, the music is made by the composers, texts and musicians who do not want to work for free and go to the secondary taxi and can. If more and more users do not pay anything more, more and more musicians will not be able to live from and thus not for the music. Anyone who means that paid music offers and generally intellectual property are theft in the general public or similar and behaved accordingly, thus only OL on the fire of the FileSharing opponent and loads that from there sprinkled prejudice, after the Napster and Gnutella, Freenet and Mojonation etc. Nothing as a torque place for pirates and other criminals are.
With a small meeting, on the other hand, it is possible to prove that the users of P2P music stocks are primarily something completely different, namely music lovers, so people who want to consume music. From this point of view, FileSharing networks result in incredible advantages in the procurement of the music, which justify a small fee without further ado. You give everything, at the push of a button and in a short time. And you can give others everything. It is neither to be viewed nor with the right — including the German Basic Law — that the use of protected and protective material should no more benefits in the gamble.
Everyone can do something for a constructive solution of the FileSharing problem if he brings compromise readiness. The industry should all be withdrawn that FileSharing represents a previously unknown distribution channel, which everyone could see and should make sense. In any case, this technology can be forbidden after copyright just as little as providers and users can be held liable for this purpose. It remains, however, to adapt itself to progress, accept it and try to wipe out. There was no doubt that payable offers such as the future Napster system will also find more than plenty of participants, as these can be simply technically mature, which simply costs money.
The independent, decentralized networks will continue to exist, because you do not need to make any illusions with RPS and other systems. If you want to achieve that it is also paid here, you have to find a more lump-sum and paths found financially. For example, you could think of streaming fees, after the motto, I pay only what I’m using. Such systems, of course, have the disadvantage of the disadvantage of all flat systems such as the equipment amount, which they are only technically realized and then must be monitored by anywhere. Nevertheless, this is the direction in which you should think before you move your clientele as a pirate and tries to make everyone liable. This becomes nothing but more and more alienation between provider and user, between manufacturer and consumer, which certainly does not use anyone in the end. The industry should admit that — contrary to the rules applicable to recently applicable — the consumers are sitting on the longest lever and therefore have the power to control the development. This knowledge also requires a rethinking.
The users, on the other hand, should be aware that art and culture is equally free, like other goods that this is (intellectual) property. Likewise, as we came up with the idea of looking at the lawnmaher of the neighbor as a common good and to take it static or to take all the way, this should be clear if we use other people works. The fact that the intellectual property for use does not have to be asked for permission can still be justified that this retain its original, but not the neighbor his lawnmaher, and also that culture is much more subject to the subject of property of property must be, which means that here is more of every right to use than in general with facts. But if you do not have to ask, it does not seem justified to do not have to pay, because in any case you have to acknowledge that the legitimate has created something we want to benefit from. Such a thing is mostly paid in a democracy or better, it is the responsibility of the individuals in a democracy to be hereuber.
On the idea of a theses paper "Legal questions from FileSharing systems from the point of view of German copyright" by Till Kreutzer, which also concerns the legal designers presented in this article, has in the context of the Symposion Napster and the consequences (26.1.2001, college for graphics and book art Leipzig) Dr. Thorsten Braun, Process Copyright at the German Land Group of the IFPI, a reply: Legal ies from FileSharing systems from the point of view of German copyright — reply to the thesis paper by Till Kreutzer.
Till Kreutzer, Legal Referendar, is a resistant employee in law firm lawyers Kukuk, Hamburg.