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John Riceburg: Superhighway robbery continues

More than 4.3 million people in Germany have gotten letters accusing them of piracy on the internet. Just last week a friend got an Abmahnung demanding lots of money. What should you do if you're accused of illegal file sharing?

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“First I was ashamed. Then I was angry. Then I didn’t give a shit,” Garth, an American friend in Berlin, told me. He had just just opened his mailbox to find a letter from Berlin lawyer Daniel Sebastian. The 27-year-old was accused of sharing the song “Hey Now” by Martin Solveig & The Cataracts, from the movie Fack ju Göhte, over the internet.

“A crappy movie and an even crappier song,” he lamented. He was supposed to pay €812 for this crap, despite having never heard the song beforehand.

His first reaction was panic. Could he be guilty of the crime? Or did a friend use his WLAN and get him in trouble? And he started going through the costs: could this letter mean bankruptcy? Was this the beginning of the end?

An Abmahnung like this demands an Unterlassungserklärung, a written declaration that Garth would never make “Hey Now” available for download again. The lawyer wanted almost a thousand euros for his trouble – he claimed that if the case went to court Williams would be liable for €1857.

As most of you already know, this isn’t an isolated incident. In 2012, the Bundesverband der Verbraucherzentralen (consumer protection offices) calculated that 4.3 million people in Germany had received an Abmahnung for something or other. The burden of proof often falls on the accused: the owners of internet connections are considered legally responsible for anything that passes over their lines. As we reported two years ago, a court in Munich forced an old woman to pay for pirating a film, even though she didn’t even own a computer or a router. While a recent decision by the Federal Court established that parents who own an internet connection are not legally responsible for the activity of their grown children, and other court decisions have denied that someone can be liable for the file sharing of their flatmates, this archaic judicial precedent remains the main hindrance to a free, open WLAN system in Berlin.

Garth read up on the problem and, after the panic subsided, decided to send off a modifizierte Unterlassungserklärung, a modified version of the declaration that he was given to sign. He declared he would not make “Hey Now” available in the future, but didn’t admit to having done so in the past, and rejected all claims for money. He expects a few more threatening letters and then nothing more.

Statistics from 2012 from the “Community Against Abmahnung Insanity” (reflecting only people who were in contact with them) showed that only 12 percent of people paid the lawyers anything, while 87 percent just sent the modifizierte Unterlassungserklärung. The year 2012 saw just over 1000 cases filed in court, even though an estimated 110,000 letters had been sent out. By that count, Williams has an almost 99 percent chance that the lawyer will give up sooner or later.

“I’m not stressed at all” he says. Garth’s reasoning? The lawyer isn’t out for time-consuming legal procedures – he wants to scare people and get them to send him free money.

This particular lawyer, Daniel Sebastian, has been in the news recently in relation to thousands of Abmahnungen sent to users of the pornographic streaming site RedTube. Lawyers usually focus on torrents or other P2P systems that simultaneously upload and download. This is the first attempt to get at streamers – even though the Ministry of Justice has declared that it doesn’t consider streaming a copyright violation since no copy is saved. There are many doubts about whether Sebastian and co. correctly and legally gathered the IP addresses they presented to a judge, or whether their client even owns the rights to the films in question.

The lawyers sending these letters might be legitimate defenders of copyrights – or they might be, as the Süddeutsche Zeitung quoted experts regarding the RedTube case, committing “organised fraud”. If you hand over money to highway robbers, you can be sure that some of the bounty will go to weapons and thus to further robberies. That’s why Williams isn’t sending a cent – someone has to stop funding this ridiculous industry. In the worst case, a court will have to consider the question. Only with enough cases going to trial will judges feel motivated to bring Germany’s internet laws into the 21st century.

“For the sake of cosmic justice I hope Daniel Sebastian gets put into a forced labor camp during times of revolutionary upheaval,” says Williams. “Or short of that gets a really bad kidney stone.”

To read more on laws regarding downloading and file sharing, read “The lowdown on downloads”.