What is the future of cyber piracy

Pros and Cons of Warning Model: A dispute about how to deal with file sharers


by Dr. Florian Drücke and Oliver Süme


The music and film industry has been fighting against "digital pirates" for years. Rights holders, the internet industry, users and politicians are discussing alternatives to the expensive warning procedure. Now it is supposed to set up a "warning model". The Federal Association of the Music Industry and the Association of the German Internet Industry naturally have different opinions on this. A pros and cons.

File shareers who illegally download individual songs, entire albums or films on the Internet make life difficult for the authors of the works as well as their exploiters. The waves of warnings have not slackened significantly, despite the cap on legal prosecution costs, and voluntary approaches to cooperation between rights holders and the internet industry to curb internet piracy have failed.

Siegfried Kauder (CDU) recently lamented the standstill of the copyright reform and announced a draft law for a warning model in the event of copyright infringements on the Internet. Similar to the approaches in France or the USA, users who are noticed by rights holders in the event of a specific legal violation should receive warning notices. These clarify about the violation and inform that in case of repetition a sanction will follow.

Pro: Sensible combination of education and deterrence

Warning notices are a sensible model with a future, even if you cannot fix it alone, says Dr. Florian Drücke, Managing Director of the Bundesverband Musikindustrie e. V.

The idea of ​​the warning model is anything but new. In order to discuss the development of voluntary solutions between rights holders and the internet economy to curb internet piracy, the "Economic Dialogue for More Cooperation in Combating Copyright Infringement" was set up in 2008 under the auspices of the Federal Ministry of Economics (BMWi). The dialogue was preceded by a number of "round tables" which failed to objectify the emotional discussion. Business models were presented, approaches to enlightenment were debated and systems of "individual approach" were discussed. Always under the premise of cooperation in this great social challenge.

Where self-regulation fails, politics must act. In order to test the feasibility of a warning model, the BMWi commissioned an expert opinion in August 2011, which is intended to compare models for sending warning notices by Internet access providers. This ultimately implements the demands of the FDP parliamentary group in 2008, which the federal government at the time had asked to submit a similar report and to point out the need for legislative action (German Bundestag, printed matter 16/8783). Demands that are finally within reach today, three years and a few round tables later.

A detailed statement from the rights holders involved has been available since the beginning of 2011 on the technology-neutral design of a warning model and on the sustainable containment of Internet piracy on streaming portals and cyberlockers - the providers, however, generally reject any joint responsibility.

The report as a catalyst

In doing so, however, they overlook the advantages: First of all, the data traffic caused by the high level of file sharing and the associated network costs are reduced. With the increasing use of legal content offers, Internet service providers could also participate more in the sale of digital content than before.

There is currently an unbearable standstill, which is at the expense of artists and creators in the 237,000 small and medium-sized companies in the cultural and creative industries.

With the report, the warning model is picking up speed again. It is clear that it has to be a model adapted to the German legal framework - this applies above all to the choice of sanctions and data protection. Mind you: the data of the subscriber would only be transmitted to the rights holders in the event of a repetition.

The consumer himself can make informed decisions

It is also certain that a voluntary warning model, such as that agreed in the USA between rights holders and the internet industry, should not cause complete alienation in the German context, despite all the emotionality of the debate. Ultimately, it is clear that a warning model can only be one component in the sustainable reduction of Internet piracy. For example, in order to consider the problem of streaming services and cyberlockers, additional accompanying regulations are required.

Ultimately, however, it is the combination of education and deterrence in particular that speaks in favor of such a warning model: Consumers are given the opportunity to reconsider their illegal actions, to stop or to react if, for example, the WLAN has been used by third parties.

Above all, however, such a concept is seen as effective by the active German file sharers themselves: According to the current study by the Gesellschaft für Konsumforschung (GfK) on the usage behavior of digital content, 81 percent of them believe that people who offer or download media content illegally are theirs Would stop acting after a warning. Studies from abroad also come to similar results.

So far, the widely scolded warning has been used to enforce intellectual property rights on the Internet. This threatens after the first act of violation. It is all the more astonishing that the discussion about appropriate sanctions after prior warning regularly generates waves of indignation. And not only when the temporary suspension of the internet connection is being discussed as a sanction.

An opportunity for the legislature

The legislature should seize the opportunity and finally act. After all, it is not about "the one model", but about rebalancing regulations that are scattered across various laws. The problem must no longer be left to the rights holders from the book, film, TV, games or music industries alone. The cooperation of the internet economy is also required, naturally taking into account the various fundamental rights and interests involved.

Contrary to recurring allegations and in spite of ongoing piracy, the music industry has, by the way, steadily expanded the legal offer on the Internet: There are more than 60 legal services in Germany alone. Services that are under massive pressure from illegal free offers - because even the best legal offer cannot compete with illegal sources that offer the same content for free.

The rights holders want an objectification and an analysis that enables rapid political decision-making. A new trivialization debate, on the other hand, would throw everyone involved back years.

Cons: Against legal privatization and the weakening of data protection

There have been warnings for a long time, but nobody uses them. And for good reasons, because the providers should not be allowed to check whether someone is committing legal violations, comments Oliver Süme, Board Member for Law and Regulation of the Association of the German Internet Industry (ECO).

The warnings required by many rights holders, which providers should send to their customers in the event of copyright infringements, meet a large number of legal and factual concerns.

The ability to send warning notices has actually existed for the music industry for several years. It was not until 2008 that an EU directive introduced a right to information in Section 101 (2) of the Copyright Act (UrhG). This enables rights holders, on the basis of a court order, to receive customer data from a provider for an IP address via which an obvious copyright infringement is alleged to have taken place.

In contrast to many other EU countries, this information procedure also works extremely well in Germany - too well, some would say. Over 300,000 data records are checked by the German providers every month on the basis of court decisions, the customer data is passed on to the rights holders. They then have the free choice of whether they want to send warning notices or large amounts of chargeable warnings.

There have long been warnings - only nobody uses them

The result is known. An explanation for why the existing instrument is still not even rudimentarily used for sending warning notices has not yet been made.

This is just as incomprehensible for German providers as it is for many consumers. In any case, the same legal concerns are linked to the demand for a warning notice model that were discussed very controversially in legal policy when the right to information was introduced.

Should actually a provider and not a court decide whether a copyright infringement has taken place or not? Should this decision be a sufficient basis for the provider to check and release customer data that is subject to data protection and telecommunications secrecy?

Without a judge's control, the provider becomes a supervisor

Such a privatization of law in favor of a certain interest group is not only alien to German law. A warning model also means that such a procedure is not embedded in a legal process. The allegation and the prosecution of copyrights and the encroachment on the secrecy of telecommunications as well as the protection of personal data are solely at the disposal of private companies.

Because precisely this was understandably not intended by the legislature, the right to information in Section 101 (9) UrhG was provided with a judge's reservation in the event that the desired information can only be provided using traffic data. This principle should now be overturned, as it were, through the back door, because the provider must access the traffic data of his customers for this process and judge himself whether there is any legal violation at all.

Since, according to the ideas of the rights holders, the warning notices should also be sent by the providers themselves, their role would change from a neutral communications service provider to a partial monitoring provider from the customer's point of view. Providers cannot and will not accept such a profound break in the relationship of trust with consumers. Not to mention that this would take a separate path for a single target group within the creative industry.

Rights holders save money and pass the buck

The real reason for the fact that rights holders have been calling for a warning notice model, which has been the same for many years, is obvious: The legally stipulated information procedure costs money. Of course, it is also easier to delegate the dispatch of warnings to others than to be aware of this yourself.

In addition, one blames the provider for the buck of the "supervisor". The rights holder does not piss off consumers. Their mood is in the basement anyway: Too much porcelain has been smashed by the excessive expansion of mass warnings in recent years and many consumers now only have negative associations with the subject of copyright. "Citizens hear the word 'copyright' and hate what it stands for," stressed EU Commissioner Neelie Kroes in a recent speech to French creatives.

Finally, what is overlooked is the fact that the problem of illegal downloads has considerably eased since the introduction of the right to information. Although more and more people are online and the Internet connections allow households to use ever higher transmission speeds, the number of illegal downloads is falling continuously. At the same time, more and more people are consuming legal digital music and are generating ever higher sales for the music industry.

The adjusting screw for the successful upheaval of the traditional business models of many rights holders is therefore not called "warnings", but "attractive offers". Legal privatization and the relaxation of data protection and telecommunications secrecy without judicial control are neither appropriate nor necessary.

Dr. Florian Drücke is the managing director of the Bundesverband Musikindustrie e. V. in Berlin. Oliver Süme works on the "Law and Regulation" board of the Association of the German Internet Industry (ECO).


More on LTO.de:

BMWi: Study on warning models awarded to Cologne Research Center for Media Law

Study Commission: Copyright should be simplified

ECJ on copyright protection: Providers do not have to filter and block at their own expense