ISPs Cannot Be Forced To Store Data on File-Sharers, Court Rules

Most Internet service providers log information about their users, such as when they use the service and the IP addresses they were allocated at the time. This information is useful for ISPs' housekeeping but it's also an invaluable resource for copyright trolls looking to track down file-sharers. Can an ISP be forced to collect and retain such data? In a disappointment to rightsholders, a higher regional court in Germany has clarified that ISPs cannot.

ip addressWhile copyright trolls in the United States are doing their very best to file lawsuits against as many alleged file-sharers as possible, their counterparts in Germany will take some beating.

Hundreds of thousands of Internet account holders have been targeted with so-called pay-up-or-else letters over the past few years and although there are no official figures available, settlements paid run into scores of millions of dollars.

In part this huge drive has been fueled by the law. Once a rightsholder captures an IP address and traces this back through an ISP to an Internet bill payer, that person is often considered responsible for what happens on his or her connection.

“Since 2008 the rights-owners have had the right to request the name and address of a connection holder connected to a certain IP-Address at a certain time, in case there was a copyright infringement committed from this connection,” Wilde Beuger Solmecke lawyer Otto Freiherr Grote told TorrentFreak.

With most ISPs storing user data as a matter of course, tracking connection owners has become very simple indeed. However, not all ISPs retain the data necessary to connect an IP address with an end user, so when required to hand over personal details to trolls and other rightsholders, problems arise.

“Some access providers (Vodafone for example) don’t provide this information in Germany. They often argue that they don’t save dynamic IP-addresses at all,” Grote adds.

This awkward position with some ISPs has left rightsholders with a dead end on claims and file-sharers with somewhat of a safe haven.

“It’s as good as impossible for the rights-owners to sue any file-sharing clients of these providers,” Grote notes.

In response a film company, an anti-piracy company and an adult film producer took Vodafone to court to force the ISP to store data on file-sharers in order for it to be handed over at a later date. They were met with success, with the regional court in Düsseldorf ruling that Vodafone must retain the data.

But following a successful appeal, the earlier setback for the ISPs and their subscribers proved only temporary.

“The Higher regional Court has now annulled these decisions,” Grote explains. “The Court constitutes that there is no obligation to save the data.”

The OLG Düsseldorf ruled that ISPs do have to provide data to rightsholders, but only if they stored it in the first instance.

The question now is whether in the light of the ruling ISPs will reconsider their logging policies. Troll lawsuits are proving a plague on Internet account holders in Germany and the possibility of never becoming the subject of one will be an attractive proposition for those looking to switch ISPs in the future.

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