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Music industry rebuffed across Europe on file-sharing identifications

'Disproportionate'

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A German court has refused to order ISPs to hand over user details to the music industry. The incident is not the first in Germany, and follows the opinion of a European Court of Justice Advocate-General backing the stance.

A court in Offenburg, Germany refused to order ISPs to identify subscribers when asked to by music industry groups who suspected specified accounts were being used for copyright-infringing file-sharing, according to German news service Heise Online.

The court said that ordering the handover of details would be "disproportionate", and that the music industry had not adequately explained how the alleged actions of subscribers amounted to the "criminally relevant damage" needed to force the identification of users.

The ruling follows the publication two weeks ago of an Advocate-General's opinion prepared for the European Court of Justice (ECJ) which said that countries whose law restricted the handing over of identifying data to criminal cases only were compliant with EU Directives.

Advocate-General Juliane Kokott produced advice for the ECJ on a Spanish case in which a copyright holders' group wanted ISP Telefonica to hand over subscriber details to it.

Kokott said that details did not have to be handed over in civil cases such as Telefonica's, and that they only had to be handed over in criminal cases. The ECJ does not have to follow an Advocate-General's advice, but does so in over three-quarters of cases.

Another German authority had made a similar decision earlier this year, according to Heise Online. The chief prosecutor's office in Celle refused to offer a handover because it said that substantial damage had not been shown, and that it doubted that music industry representatives would use the evidence to bring a criminal case.

If European authorities begin to refuse to order the hand over of subscriber details in civil cases it will severely hamper the music industry's attempts to take civil action against file sharers.

In most European countries, including the UK, copyright infringement is only a criminal offence when conducted on a commercial scale. Most individual file-sharing would be unlikely to count as a criminal offence.

The ECJ's Kokott said that EU Directives allowed for countries to have laws refusing to hand over data except in criminal cases. It was on one such law that Telefonica relied in its case.

"In the first instance the court ordered Telefonica to communicate the requested information," said Kokott's opinion, in an unofficial translation from the Spanish produced by OUT-LAW.COM. "However, Telefonica opposed the order, alleging that in no situation could it hand over the details given that under article 12 of the [Spanish] IT services and E-commerce legislation, this data could only be handed over in a criminal investigation or where it was required for reasons of public safety or national security. Only in these cases could a service provider be obliged to hand over the data that by law it is obliged to keep."

The Spanish court in that case asked the ECJ to rule on whether or not it should order Telefonica to hand over the details in a civil case, or whether giving details would breach data protection and privacy laws.

Kokott said that she backed Telefonica's view that ISPs are obliged to hand over details only in criminal cases, and not in civil cases.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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