Over the past decade, copyright holders have gone after hundreds of thousands of alleged pirates in Germany, demanding settlements ranging from a few hundred to thousands of euros.
The targeted account holders are often indeed the perpetrator, but false accusations are bound to happen due to the sheer volume of these cases.
This is one of the reasons why local courts are paying careful attention to the provided evidence. At the District Court of Cologne, this recently resulted in a verdict, clarifying that simply linking an IP-address to a pirated download is not good enough.
The case in question deals with a claim from the local branch of Warner Bros. Entertainment, which accused an account holder of sharing a pirated episode of the popular TV-show “Person of Interest.”
The Hollywood studio claimed 500 euros in damages from the alleged copyright infringer, as well as 168.50 euros in expenses. The defendant, however, said he was innocent, refused to pay up, and contested the claim in court, with success.
Warner’s tracking partner Ipoque had only monitored the defendant’s IP-address twice during a period of 10 minutes. This is not good enough according to the court, since IP-address misassignments regularly take place.
“The causes for a misassignment don’t have to relate to the software of the tracking company, they can also come from others. For example, the transmission of acquired data, or the ISPs assignment of collected IP addresses to connection holders. In the latter case, the Court of First Instance has seen an error rate of at least 2 – 3%,” the court writes.
In this case, the defendant argued that his ISP failed to update the IP-address assignments and that he no longer used the infringing address at the contested time.
The District Court of Cologne agreed that this was a plausible argument. Ideally, Warner should have provided a more extensive tracking record, with more IP-addresses leading to the same account holder, assuming that the assignments regularly change.
Defense attorney Christian Solmecke tells TorrentFreak that so-called “simple tracking,” where only a single IP-address is used as evidence, is simply not good enough.
“In case of simple tracking, evaluation errors are always possible. For instance, mixing up the numbers of the IP-address. The tracking parameters are technically complicated so errors may occur at various stages of the process,” Solmecke notes.
In some cases the error rates can go up to 50%, a recent verdict has shown, which means that accused file-sharers have a solid defense when they are accused based on minimal evidence.
“This is important for defendants as courts usually tend to assume that it cannot be sufficiently clarified whether filesharing did indeed occur via the Internet connection of the defendant. Simple tracking can, therefore, be seen as a good chance for defendants to win against the warning letter industry,” Solmecke adds.
While the verdict is unlikely to stop the piracy settlement industry in Germany, it may prompt rightsholders to step up their BitTorrent monitoring practices.
This doesn’t only apply to Warner Bros. Entertainment, but also to other major rightsholders including the local branches of Universal Pictures, Twentieth Century Fox, Universal Music, EMI Music and Sony Music, which are all active on the anti-piracy front in Germany.
Update: Attorney Mirko Brüß, who works for Warner’s law firm Waldorf Frommer, informs us that the decision from the District Court of Cologne is a singular opinion, not necessarily shared by other courts elsewhere in Germany. The 50% error rate is “a myth” and lacks context, he notes.
“The Court’s verdict is – like in many cases of this particular judge – contrary to established jurisdiction and law. The verdicts of the referred judge are regularly annulled by the Court of Appeal. This will very likely also happen in the case at hand.”
“In 2015, the FCJ, Germany’s highest civil court, has ruled in a similar case that a single IP-address being connected to a certain internet subscriber is sufficient evidence to prove infringement via that subscriber’s internet connection.”
The full verdict of the District Court of Cologne is available here (pdf), with help from Tarnkappe.
Update: In a similar case, a German Court of Appeal ruled that detecting multiple instances of infringement from a single IP-address can be enough. We’ll keep an eye on thise case to see how it develops.