English 21.11.2012

“File sharers are also being sued in Austria”

Internet service providers are currently not permitted to reveal the identity of file sharing service users in Austria for the purposes of lawsuits. According to Peter Burgstaller, attorney and professor for IT law in Hagenberg, such lawsuits are filed on a regular basis. He has defended around 20 file sharers himself over the past three years. Burgstaller fears that that data now being saved under the data retention laws will also be used to prosecute copyright violations.

"Copyright holders are not only taking aggressive action against file sharers in Germany and 

but also in Austria. They are filing criminal charges and civil lawsuits and are taking all legal action at their disposal to achieve settlements," said Burgstaller, who teaches IT law at the Hagenberg University of Applied Sciences and works as an attorney at a law firm in Linz, in an interview with futurezone during the"IT Security on the Danube" conference in Linz. "They always employ the same method: The account holder is sued and criminal charges are filed to pressure the individual into paying a settlement," explained Burgstaller.

Maximilian Schubert, general secretary of Internet Service Provider Austria (ISPA), is surprised by this method: "There is virtually no legal way that people can be identified through dynamic IP addresses. Such an identification would require an order from a public prosecutor. But a public prosecutor may not take action until the name of the account holder is known." Andreas Manak, attorney and general secretary of the Austrian Anti-Piracy Association (VAP), also confirmed this: "We cannot identify culprits on the basis of dynamic IP addresses in Austria, as we as private plaintiffs have no legal right to this information." According to Burgstaller, "Many providers release this information anyway because there was a long period of legal uncertainty due to different supreme court decisions."

"Creative attempts to get information"Thomas Pfeiffer, information security officer at the Internet service provider Linz AG, confirmed for futurezone that there are often requests for information in connection with copyright infringements. But Linz AG always rejects these requests. "I often hear stories about how people impersonating police officers use threats to get information," said Pfeiffer. Schubert from the ISPA also said that there have been cases in the past where pressure was used to get information. "But we always tell the providers that they may not give in to this pressure, even if `Everyone else does.`"

The attorney from Linz dealt with roughly 20 cases involving file sharers over the past three years. But he can no longer remember what providers were involved. Generally, copyright holders demand damages in the amount of 99 cents per song in the case of music, similar to iTunes prices, plus court costs, explained Burgstaller. The attorney is bothered by one thing above all in this: "They don`t catch the right people. The mother of a 13 year old comes to me because her son uploaded and downloaded files using her Internet connection. These children are not criminals, even if a lack of knowledge does not protect one against punishment. They are taking a sledgehammer to crack a nut and are using the criminal justice system to pursue something that is minor in our society."

Data retention for copyright violations?Burgstaller fears that the data now being saved under the data retention laws will also be released for use in prosecuting file sharers – because the plaintiffs could classify the use as "commercial" and this crime is punishable by up to two years in jail. In § 70 of the Austrian Criminal Code, commercial action is defined by the intent "to generate a stream of income through the repeated commission of an action." "A plaintiff could claim this with good reason. Because on file sharing platforms, you also automatically make the song available as an upload," said Burgstaller.

According to §91 of the Austrian Copyright Act, commercial violations are currently also matters of civil law in which the public prosecutor may only become involved when the name of the potential perpetrator is already known. However, the Ministry of Justice is currently negotiating on whether retained data may be used to identify individuals suspected of such copyright infringements as part of an amendment of the copyright laws.

"We don`t want to turn kids into criminals""We involve all affected parties and have initiated different discussions," the Ministry of Justice told futurezone. In addition to "better enforcement," discussions are also examining how providers should be required to disclose information. But no one wants to "turn kids into criminals."

In addition to other "affected parties", Manak from the VAP and Schubert from the ISPA have come to the table for negotiations. While Schubert is very tight-lipped about the negotiations, Manak already provided some insights: "It is to become possible to prosecute copyright infringements on the Internet again," said Manak. The general secretary of the VAP said that there has intentionally been no attempt to initiate proceedings to determine whether or not retained data can be accessed to investigate commercial copyright infringements. Instead, they want to wait for the amendment of the Copyright Act.

"Not covered by the EU Directive"Schubert from the ISPA confirmed that there are currently discussions about enforcement and information disclosure requirements for providers, but sees no decisions yet: "That is the opinion of Dr. Manak. We demand a mandatory court decision, because we want legal certainty. And using retained data for civil damage compensation claims is not covered by the EU directive."

Burgstaller also criticizes this approach: "Retained data is not a suitable means for prosecuting offenses that young people often commit without clear knowledge of the legal situation. This is growing out of proportion," said the professor from Hagenberg. One can only hope that this opinion will prevail in the negotiations. The amendment of the Copyright Act is to come before parliament in spring 2013.

 

Attorney Peter Burgstaller from the Hagenberg University of Applied Sciences at the conference "IT Security on the Danube"

( futurezone ) Erstellt am 21.11.2012