by

February 28, 2012

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With English 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 whole 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.”

Good business

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.

Fatal flaws

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.

by

February 28, 2012

Comments (27)

Comment Feed

Got fined

I just got the letter today, 800 euro for 12 year old slave

michael 22 days ago

RE: Laptop and Ipad Seizure!!!!

I doubt that happened.

GUffy 38 days ago

Laptop and Ipad Seizure!!!!

This has happened to my friend in Berlin (the day before he leaves for NYC). The company mentioned here, Waldorf Frommer, have left him a letter and taken his computer and iPad. Any ideas on how to get it back??? It seems crazy that they can just take your stuff!! He was out as well so they did not have consent to be in his apartment or take his stuff. Surely this is illegal??? They are not the police!

Any advice much appreciated!

Zoe 50 days ago

Got a letter but didn't download...

Hi,

I received a letter 2 weeks ago regarding some downloading during a time when I wasn't even in my flat. The IP address they stated doesn't match mine. I don't even listen to the style of music of the artist that I am supposed to have downloaded the music of, and have never had any of the files on my computer.I hide my wifi network so no one can even find it, so it isn't a question of someone else using my internet to download. Additionally, I have never downloaded anything since being here because I know how easy it is to get caught.

I was advised, since I have proof that it wasn't me, to ignore the letter. However, last week, I got the same letter sent, but this time by recorded post.

Can anyone advise me on next steps? I don't want to have to pay for a lawyer for something that I have not done at all.

Antonia Lim 187 days ago

Get a lawyer

got more than one letter from the same firm for multiple downloads within a week done by a relative of mine who visited and did not know the rules. Decided to get a lawyer and he advised me to never sign the release (unterlassungs) form. the deadline on signing that form is usually within a week from receiving the letter which they do intentionally to scar you. The lawyer said he will be able to remove the fine or reduce it to 150 euro (the fine was 950 for every movie). after asking a lot and searching i think it is best to get a lawyer immediately or at least talk to one before doing anything.

Hamburg.visitor 260 days ago

got a letter too

Just got a letter for downloading an American TV show episode. I want to address this and would like to consult with a lawyer. Can someone recommend one for me?

Warpath 332 days ago

Keep calm

Chris, consult a lawyer first. Unless you know what they put in the cease and desist form, you may be setting yourself up for more legal grief. Remember, the law firm who sent the letter is trying to maximize what it can get, taking into account that many people will be too intimidated to get legal counsel.

(If your lawyer says ignore it, go to another.)

Xander more than 1 years ago

rosch

got a ltter, solicitor suggested to ignore. i am on benefits only, sould it be feasable to offer a monthly payment plan , they ahve agreed reduction to 600 euros but time is ticking.

sasha more than 1 years ago

Looking back

I got a letter for 1 episode that I downloaded 2 months ago-800€. Gonna get a cease and desist signed. I'm wondering tho, can they come after me still for all the downloads I've done in the 2 months between the one they got me for and the letter showing up? I was wrong, I got it. I didn't think it could happen to me and it did, but if I get a 800€ bill for the 30 things I've downloaded I'll be on debt for life. Anyone smart on this?

Chris more than 1 years ago

Paid the court.

Out lawyer gave us shitty advice saying ignore them and they'll most likely go away. However this wasn't the case. We ended up with a letter from a courthouse in Berlin demanding we payed the fine (well over €1,000). So we did.

We received a letter again for the SAME game. So now we are getting a new lawyer who will hopefully be able to help us with the problem and make it the past very soon. My suggestion to those looking for answer...get a lawyer and do not ignore the letters. There are lawyers in Germany who specialize in filesharing/illegal downloading. They can get you a reduced price and help solve your problems.

Roxy Skyy more than 1 years ago

what I want to know is...

...can they target you specifically and go back to see what you have downloaded AFTER it's passed? I got a letter targeting me for downloading but it was for something back in FEbruary 2012 (almost a year ago)...I'm wondering if I kicked up a stink if they'd be able to dig into my past activity to try and nail me for other stuff?

Skazzy more than 1 years ago

I believe your flatmate will be held responsible

Like the article says, those that own the connection are responsible for the Strafen. Whether you leave or not, he is legally responsible for the fine.

Walter Crasshole more than 1 years ago

Got a letter

I got a letter sent to the flat i am staying at. I leave in less than 2 weeks I won't even be in the country. But it's under my housemate's name. I don't know what i can do. What are my options?
Neither of us have the money to pay this crazy price. 500 euro for the lawyers to send a letter???
Is it worth it to just ignore it? I will be gone soon and he wasn't the one who downloaded it. But if gets called to court will he get in trouble?
Please help.

Simon more than 1 years ago

and anyways..

as i originally stated, regardless of your position on file-sharing vs. theft: these letters from people claiming to be lawyers representing corporations are scare tactics which by no means contribute to the artists who may or may not have been ripped off.

there is no proof required that the account holder has committed any downloading, whether or not that should be a crime. if anything, the account holder's privacy has been abused by their internet provider (who actually profits from uploading/downloading, remember).

it is a backwards attitude to chase file-sharers who do so for personal use. remember when the cassette came out, or cd? everyone cried wolf that it would be the death of vinyl and if anything the superior sound quality of— well almost ALL those mediums over mp3s— has guaranteed there will remain a market for recorded media.

i think some investigation into whether movie/music sales have actually been adversely affected by file sharing needs to be done before we can assume statistics given by record and film industry corporations are accurate or conclusive proof of "theft".

i wouldn't be surprised to find the sharing of information over the internet— other than file sharing— actually contributes to an increase in awareness of great bands, via blogs, forums etc providing FREE promotion of similar & under-exposed artist leading to more hype, more sales of concert & movie tickets, merchandise & erm, stuff!

digital is not the end of making a living. did any of us pay poor ben knight for his article? GASP— NO! we just stole it right off him! and I even sent a link to a friend! yet somehow i'm sure his bosses made sure he got paid— ok please tell me you got paid, ben? i really hope you're not one of those poor exploited interns...

herr james more than 2 years ago

re

@Alia Most downloads are for sampling reasons anyway. People don't even have the time to listen to all the stuff they snatch. Most of the downloaded music is given a try and if it doesn't click will rot on hard disks until the hard disks fail. The sermon "Each MP3 you snatch is 50 cent out of the artist's pocket" (or so) simply doesn't apply. Same goes for people who systematically download whole music history collections 24/7 - it's an obsession thing, but people would have NEVER spent the equal amount of money for music (simply because, well, no one but Bill Gates can afford spending 10.000 dollars each month for CDs which will be never listened to). on the other hand, artists never had it easy to make money - yes, sure, there was always the fab four, led zep, madonna, michael jackson and nirvana. ok, THEY made helluvabuck and still do.however, MOST artists have ALWAYS been struggling to make a dime and many never have made it. just being an artist was never a guarantee to a paycheck, but quite the opposite. of course, today music labels tell all those tales about the golden age when it was different - and most artists of today believe that crap. however, now, all of sudden, artists decide to stop making art just because it could turn out next month's rent will not be safe? why didn't they stop earlier, when it was just as well close to impossible to make a buck (and highly probable you'll lose some on the way)? and still: why isn't it considered stealing when I hand my cds or dvds over to my friends so they can watch it just as well? (btw. i love paying artists for the stuff they do when they offer a paypal donation button on their website. and i care enough to buy their stuff when I really care about the art and consider it support-worthy. other stuff: download it, listen to it once or twice, if it doesn't click I'll delete it as soon as i need the hd space)

Wotyla more than 2 years ago

got a letter

I got one of these letters! Haven't downloaded anything, and wasn't even in the country by then!
But I don't speak German very well and don't even know how to deal with it...
Anybody could recommend a layer?

Leo more than 2 years ago

missed again

my point.

being that there are a lot of grey areas - not just extremes here.

incorrectly you assume that file sharing = loss of sales = theft.
a. previously i worked at a radio station and never paid artists for their "work", nether did lots of others who heard their songs for free on the radio. but that exposure was used to encourage sales.
b.many albums i've had recommended/shared with me by friends have been so great i've snapped up a cd which i never knew about, so otherwise would never have bought and gone to concerts/festivals (indirectly benefitting other artists and industry worker bees) & purchased t-shirts, etc. sold at said concerts - again. so file-sharing downloading does contribute to profits - oh wait, now should i be instantly deserving of artists profits, such as so many "hard-working" promoters claim?

it is not black & white, most file sharing is victimless. perhaps people would never buy an album if they can download it, yes - but then again a lot of people would never buy albums anyway, so at least music/movies are being experienced while increasing potential audiences at future events to later collect over-priced back-catalogs or re-releases when bands inevitably reform, tour and make ten times a record/film deal's measly profit share.

for example, would the arctic monkeys even have a career without freely sharing their work originally online? ever since, record companies have been just as guilty as mercilessly harvesting mp3 downloads in order to discover the next best (un-signed) thing.

c. isn't debate fun? i mean, we could talk about the past or the status quo for ever... but i'd rather these well-off prats just came up with a better working model, so we could get on with having fun & enjoying music. it's almost embarrassing that a computer company is leading the market by their noses, let alone one that was set up with the core belief that intellectual property rights should be shared...

ps: modern market-research for film/music industry folk includes dummy-seeding fake files of upcoming releases on file-sharing sites in order to gauge the public interest. once again, proving the hypocrisy of industry claims that file-sharing is a one-way drain on artists/industry profits.

herr james more than 2 years ago

Byte ME, sweetheart

Filesharing has indeed changed things: people now expect to be able to enjoy the fruits of musicians'/filmmakers etc labour for free, as though they have a right to it. It's an old argument but most of us don't work for free, so why should the people making music/films etc? Your arguments are off the point and just serve to distract from the real issue. Lets be honest - for every MP3 you illegally download, thats one MP3 you won't buy. Same goes for film. The majority of people buying albums or paying for films do so because a. they have no interest in stealing them b. they can't find them to steal them. c. they don't know how to/it wouldn't occur to them. In most cases, it sure as hell isn't because they illegally downloaded them first.
Over and out.

Alia more than 2 years ago

byte me

@alia

your comments show an extreme view of file-sharing = theft. yet you show an ignorance of the many other ways in which artists have their livelihood stolen by deals and contracts set in place rewarding many lawyers and corporations with profits they didn't they earned by doing "hard work" no more exhausting than talking an artist into signing a contract transferring their ownership.

the current model is flawed. second hand dealers profit without contributing to artists' livelihoods, but that isn't theft. not all corporations are thieves just as not all file sharers are. a lot of people only download movies because they don't want to wait for a local release date - as determined by companies who control how and when an artists work is presented, often depriving the artist of income in the process. why don't you go call them thieves?

my point is that for a longtime very greedy corporations benefited from a monopoly on creating and distributing films and music. now technology has put the tools to do this into nearly anyone's hands, the game has changed.

chasing small-time occasional file-sharers is as much as a waste of time as chasing down everyone who ever recorded a song off the radio onto a cassette. i say again - if the quality is superior and the price is fair, people will still prefer to pay for a product. if companies want to retain their profits, they would be better off devising a delivery system that rivals downloading for convenience, availability & quality, such as itunes.

or how about chasing the companies that have PROFITED from file-sharing: hard drive manufacturers, internet providers, computer and software manufacturers, instead of trying to make examples of individual users? of course they won't do this - because these companies can afford to defend themselves in court and point out the obvious flaws in record/movie companies logic that file-sharing = theft.

herr james more than 2 years ago

codswallop

@wotyla - Nonsense - you're stealing from someone's livelihood each time you decide to 'duplicate' someone's work for free rather than pay for it. So it is tantamount to theft. Calling it 'duplication' doesn't make the consequences of illegal downloading any less criminal, even if it eases your conscience.

Alia more than 2 years ago

re

@Alia - it's not stealing just as watching a movie at your friend's house is not stealing. stealing = taking something from somebody so you have what the other guy had before but now doesn't have anymore. duplicating something so another guy has what the other had and still has = not stealing.

Wotyla more than 2 years ago

Stealing

why is do so many people have this sense of entitlement re; illegally downloading films and music. If you aren't prepared to get it via legal channels, why should you be entitled to have it? Musicians and filmmakers aren't benevolent organisations donating to the public. It's no good justifying stealing stuff by saying that 'the industry' and greedy mega-companies vampires are the only people profiting anyway. If you steal media, you are basically stealing from everyone in the chain of production from the lowly musician to the record company exec, film exec, people who, like everyone else, work hard to make a living. You deserve to get caught.

Alia more than 2 years ago

sue who?

this worries me - so how does a lawyer/ IP/ movie company prove the person who downloaded the film even lived at the address? so someone hacks your wi-fi, or downloads while at a free wi-fi hotspot & the account owner must pay? bullshit. i agree it is worrying that a potential shakedown like this is being used to scare people into settling out of court, without requiring proof of guilt to be established. i would have more sympathy for the industry getting ripped off if they hadn't been ripping people off for years - with artists receiving a fraction of ridiculous profits. interesting that this 'impoverished' and 'proft-decimated' industry can still afford to pay ridiculous lawyer's fees to screw over file-sharers. for a long time entertainment industries enjoyed scamming people because there was no other option. now there is a choice & people are getting them back. not every artist needs to make a killing, just a living. make movies cheaper & more easily accessible, or GASP! better quality you will see people are still happy to pay for entertainment.

herr james more than 2 years ago

re

@doodle you might notice, there's a bit of a flaw in your picture: going to the café and taking the book from your neighbor's table leaves the guy without the book. there's only one book and now you have it and not the person who had it before. same thing, regarding the supermarket. however, make an exact copy of something and now you have it AND the person who had it before. so, technically, you're not stealing - you're multiplying. that's a big difference. you wouldn't call it stealing, of course, if you'd hand over a dvd with a film you like to a friend for few days so he can see it, too. or watching a dvd with lots of friends in your house. or selling it on ebay after you had watched it. or renting one from the library or the rental store. each time, people watch the thing - with exact NO revenue for the artist (and basically, that's why people download a movie: they don't want to put it on the shelf in a nice usb stick, they wanna just watch the damn thing). however, I totally agree that artists should have revenue when people like their stuff (bigger corporations, well, I don't care soo much about): just as libraries, rental stores, selling stuff 2nd hand etc are legal in a way, we must find a way that artists might get some flowback while people are not criminalized multiplying (again: NOT stealing) their stuff.

Wotyla more than 2 years ago

Lovefilm

I just found lovefilm the other day. Does anyone know if lovefilm.com works in germany or do you have to subscribe to lovefilm.de? They seem to be two seperate services. Thanks for any more info.

Kyle more than 2 years ago

copyright

nobody would steal the book off a stranger's table in a cafe and then feel good about asking how to get away with it? We're not all permanently shoplifting in the supermarket either. Can never understand why people think it's any different with films and music. if nobody pays for movies or music, no movies or music will be made. The answer to avoiding the lawyers is not to down or upload material to which you don't own the copyright. Simple. It's really not that expensive to buy a movie or music. Not any more expensive than that beer in the supermarket or the cake at your bakery.

doodle more than 2 years ago

streaming

has anyone ever been busted in germany for streaming?

anna more than 2 years ago

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