from the always-look-on-the-bright-side dept
Germany has figured on Techdirt on a number of occasions because of the widespread use of warning letters there, sent out in large numbers in connection with alleged copyright infringement, and usually including a demand for money. Back in April 2013, the German digital rights group Digitale Gesellschaft (Digiges) contacted the European Commission in order to draw its attention to the misuse of warning letters, which it said were in contravention of safeguards contained in the relevant European legislation. Here’s the background, as explained by the digital rights association EDRi:
Digiges pointed out that in Germany, IPRED [the EU’s Intellectual Property Enforcement Directive] had led to a situation which allowed rightsholders to acquire personal data of the users directly from the providers. All they needed for that was the IP-address of an alleged infringer and an application to a court that would order the provider to hand over the requested information. While this option was originally meant to facilitate the realisation of damages and injunctive relief, the whole process in fact became more and more automated over time. The requests from rightsholders usually comprised between 15 and 3 500 IP-addresses at a time. In one single case in October 2009, the number even reached a breathtaking 11 000. Given the fact that the court proceedings in these cases are always summary or expedited ones, it becomes clear that there is hardly any chance for a judge to thoroughly check the validity and accuracy of the “evidence” presented by the rightsholder.
In its letter, Digiges argued that the situation created by the German implementation of IPRED violates EU law, and asked the European Commission to do something about it. It did: in October 2013, it invited representatives to Brussels to explain their case further. After further correspondence with Digiges, more than one and a half years after the initial letter was sent, the Commission has finally decided to take the first step towards an infringement procedure against Germany:
The Commission officially prompted the German government to comment on the German situation around warning letters within ten weeks.
Heady stuff. EDRi points out that any practical effect of the Commission taking up this case is likely to be very slow to arrive:
The German government is expected to delay their answer to the Commission as long as possible. Once it has arrived, the Commission will have 10 weeks to evaluate the government?s reply. An ensuing judicial infringement procedure might take up to two years and will be repeated if the member state in question fails to comply with the ruling of the court.
So, realistically, we are looking at over four years before Germany actually has to do anything serious like changing its law here. But EDRi tries to look on the bright side, concluding its post as follows:
it is still unclear if and when Germany will change its laws facilitating the abuse of warning letters. But an important step towards the first infringement procedure with a net-political twist has been taken.
That’s the spirit.