Hamburg Higher Regional Court, 3 November 2010, Ref.: 5 W 126/10
Time and again, Internet users are being warned about "file sharing" by law firms that specialise in prosecuting copyright infringements. File sharing is the direct transfer of files between Internet users using a peer-to-peer network. Each computer registered in this network makes its resources available to other computers. This means that each participant can search for music files (e.g. in mp3 format) or other files on the hard drives of other participants and download them.
In return, this participant makes their files available for download. If these files are protected by copyright, both downloading and making them available are subject to copyright law. According to § 85 para. 1 UrhG, the producer of a sound carrier has the exclusive right to reproduce, distribute and make the sound carrier available to the public. Storing music recordings on the hard drive of a computer therefore constitutes a reproduction in accordance with Section 16 UrhG, while offering the files stored on the hard drive for downloading falls under the "right of making available to the public" (Section 19a UrhG). It should also be noted that file sharing in violation of copyright law can also have consequences under criminal law (Sections 106, 108, 108a UrhG) in addition to the civil law claims of the rights holder pursuant to Section 97 UrhG.
In order to determine the identity of users, specialised companies offer to check file-sharing networks using so-called analysis programs, which download files and then examine them for the respective IP address. An enquiry is then made to the providers of the web connections (providers) in order to obtain the name and address data of the respective users. In this context, there has always been uncertainty as to whether IP addresses are personal data within the meaning of Section 3 BDSG and therefore whether special data protection conditions are relevant.
The Higher Regional Court of Hamburg has now dealt with this question in the above-mentioned decision.
FactsThe plaintiff operated a software company in Berlin, which launched a self-developed computer game on the market in 2009. The plaintiff was of the opinion that the defendant had downloaded this game from an internet file-sharing platform and then offered it for exchange on this platform. The defendant disputed this and also argued that the three-time assignment of an IP address to his person could not justify liability, as the Swiss-based company commissioned to determine the IP address had violated the provisions of data protection law. This follows from a ruling by the Swiss Federal Court of 8 September 2010 (1 C 285/2009), which also establishes a ban on the use of evidence under German law.
Hamburg Higher Regional CourtThe Higher Regional Court of Hamburg did not follow the defendant's argumentation: The perpetrator was liable for the copyright infringements he had committed. According to the facts presented by the plaintiff, there was a presumption that the infringement had been committed by the plaintiff. Contrary to the defendant's view, the plaintiff was also not obliged to submit a complete version of the data it had secured prior to the proceedings. Proof that the plaintiff's protected work was made publicly accessible under an IP address assigned to the defendant could also only be provided by naming a so-called "hash value". (The hash value is a short data record that can be calculated as a "fingerprint" for a very long data record and thus enables the unambiguous identification of a work placed on the Internet. There is also no prohibition on the use of evidence (not even due to the judgement of the Swiss Federal Court), as this question is to be assessed exclusively in accordance with German law, which does not classify IP addresses as personal data. This is because it is not possible to link IP addresses to individuals without additional information.
Source: Hamburg Higher Regional Court
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