17. January 2014
In the wake of the wave of streaming warning letters which were sent by German law firm Urmann + Collegen before Christmas, WILDE BEUGER SOLMECKE has pressed criminal charges against all those involved. Here is an overview of the legal basis.
Redtube warning letters
Here are the relevant passages detailing the legal basis under the German Criminal Code (Strafgesetzbuch, StGB) for the charges brought by WILDE BEUGER SOLMECKE against those involved in sending Redtube streaming warning letters:
A. Unauthorised spying on data (§ 202a German Civil Code)
“The IP addresses were obtained by an unknown person registering the domain www.retdube.net and setting up an automatic forward from “traffichoder.com” to the URL http://www.49655.retdube.net. The forwarding occurred through manipulated links in advertisements or spam on websites. Through the domain retdube.net the unknown person was easily able to record the IP addresses that accessed the relevant streams.”
“IP addresses are generally not disclosed to third persons within the framework of a streaming portal. This therefore represents the gaining of unauthorised access to data.”
B. Criminal liability of The Archive AG’s director
1. Acting on a commercial basis or within a gang to commit serious fraud (§ 263(1), (3) no. 1 StGB)
The first accusation relates to those cases in which recipients of streaming warning letters have already paid the compensation demanded. The second relates to those cases in which recipients of streaming warning letters have not yet paid the compensation demanded.
“The Archive AG deceived [recipients of the warning letters] concerning the commission of copyright infringements and the resulting obligation to pay…There is no legal basis to support the contention that a copyright infringement has been committed…”
“It cannot be assumed here that [the website] was clearly illegal as defined in § 53(1) German Copyright Act (Urheberrechtsgesetz, UrhG)…The Archive AG acted with the intention of benefiting from the repeated commission of the alleged act and to create a more than temporary and not insignificant source of income.”
“The Archive AG attempted to deceive about the existence of an obligation to pay and commenced deception through the dissemination of warning letters.”
C. Criminal liability of Urmann + Collegen’s director
2. Coercion (§ 240 StGB)
“Urmann + Collegen drafted and sent the copyright infringement notices (streaming warning letters). The objective facilitation of fraud, to the detriment of the recipients of the warning letters, is therefore present. Urmann + Collegen at least recognised the course of The Archive AG’s actions. The process used to record the IP addresses was based on an illegal procedure and therefore could not have occurred as alleged in the warning letters. Also, the fact that the alleged streaming does not infringe copyright law should lead to the conclusion that the risk of commission of a crime is high…”
“Based on these facts it cannot be presumed that the law firm acted with the intention of representing the interests of its client. Instead, the law firm’s actions had the effect of facilitating The Archive AG’s actions, [thus exposing] the recipients of warning letters to increased risk, [as they received the letters from] an institution responsible for criminal law enforcement.”
“Under the case law of the Federal Court of Justice, it is incompatible with the principle of an orderly co-existence and therefore reprehensible when legal laypersons are induced, through assertions and threats issued by institutions responsible for upholding the law, to cede to asserted legal claims which only appear to have been examined (BGH, decision from 05.09.2013 – 14 StR 162/13).”
D. Submission of false affirmations (§ 156 StGB)
This charge is against unknown employees from itGuards Inc., possibly its director.
“The company, itGuards Inc. submitted in its report supporting the disclosure applications, that its software Gladll 1.1.3 correctly logged the identity of the downloaded files, the time at which the download began and the IP addresses of the persons downloading the files.”
“The software Gladll 1.1.3 is, however, unable to analyse the communication between random internet users and a streaming portal such as redtube.com, in the manner described in the report. It is not possible to externally monitor the connection between a streaming user and the website redtube.com, without having infringed statutory provisions.”
We will post further information here when it becomes available.
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