The recent spate of cease and desist letters sent by the attorneys office of Urmann + Collegen (U+C Attorneys at Law) in connection with the co-called “porn troll letters” has caused an almost unprecedented reaction as these flooded through Germany. Compared to the cease and desist letters on traditional file sharing, which we have meanwhile become quite accustomed to, this most recent wave of cease and desist letters is characterized by some peculiarities. The crux of these is that the recipients of these letters are not accused of having violated the owners public display right, as is the case in file sharing. Rather, they are accused of merely having watched a video with pornographic content on “redtube.com”. An anonymized copy of such a letter can be found here. Naturally, this accusation is accompanied by a polite request to refund costs and pay compensation. The Archive AG reckons that a “reasonable” charge for this is EUR 250.00.
While the legal situation is still comparatively clear, the facts are pretty vague. What makes the legal situation clear is primarily that the many questions that are being discussed elsewhere in great detail are actually not essential to the case. There are indeed justified doubts as to whether the short films (with their cutesy names like “Amanda’s Secrets”) are above the threshold of originality and, if not, whether they should at least be granted moving picture protection – which, in turn, would presuppose that third party copyright provisions are assured. One could also question whether the written warnings meet formal requirements and are therefore in fact effective. A further consideration could well be whether the mere streaming of a video actually represents a copyright infringement. When all is said and done, the cautioned recipients in any case have the benefit of an important regulation: private copy in terms of Section 53 UrhG (German Copyright Act). Accordingly, streaming in a private environment is in any case permitted provided the streaming is not derived from an obviously unlawfully produced or publicly available master copy. And internet portals such as “redtube.com” are most definitely not “obviously illegal”.
What is far more interesting is just how The Archive AG managed to get hold of the addresses of the cautioned recipients. Standard procedure for obtaining addresses for film sharing is that the legal owner or his appointed agent uses a special program to access the filesharing network. The program looks for the owners works and initiates a download. This download will provide him with the IP address of the user that has offered the relevant work in the filesharing network. Now he determines the internet provider managing this IP and requests a so-called “application for disclosure” from the responsible district court. In this application, he explains how and which IPs he has found and after (a more or rather less) careful examination of the application, the court makes its decision. The content owner then sends this decision to the provider who releases his customer data to the future issuer of the cease and desist letters. The practical bulk mail-merge letter does the rest!
But when it comes to streaming, there is no filesharing network and therefore also no special program which could initiate a download to ascertain the IP addresses. After all, the user is not even offering the work for download. The question now arises as to just how, in this particular case, The Archive AG obtained these IP addresses? Initially conceivable would be that “redtube.com” logged the addresses and released the information. But – not only does “redtube.com” dispute releasing this information, this is also not claimed by the issuer of the warning. Rather, what is being claimed is that they used reliable detection software called “GLADII 1.1.3”. Just how this software functions was not explained. Instead, there is much assuring that proper procedures have been followed, which appears to have (at least in part) sufficiently satisfied the relevant judges.
There is therefore currently much speculation as to how The Archive AG actually came by these IP addresses. Some mention a virus which spied out the users and/or supposedly (re)directed them to “redtube.com”. But new discoveries open up a completely different suspicion: several recipients of cease and desist letters checked their browser history and noticed that they only landed on “redtube.com” in a roundabout way. The detour directs them from an advertising service provider via “redtube.net” non-stop to a video of The Archive AG on “redtube.com”. Naturally, through this detour one can easy log users’ IP addresses; provided one has access to “redtube.net”. Interestingly enough, this domain was only registered just a few days before the alleged legal infringements – and naturally the registration had been done anonymously. The suspicion that the users were intentionally directed to a pornographic film, so as to record the IP addresses during the detour, and that this was then the basis of the cease and desist letters, cannot be ignored. Whoever is responsible must at least face the following question: How was it possible to determine that the relevant user actually saw the film? Streaming websites normally don’t start the video unless the “play” button is pressed!
Consequently, those issuing the cease and desist letters are definitely not the least bit concerned about providing a conclusive chain of evidence. This is where the very popular “instant payers” come into play: statistically, every fifth recipient of such letters– irrespective of whether he feels he is guilty or not – pays up immediately. This is a good ratio, and one which can certainly be improved even more by redirecting only those users into the trap who have surfed on porn websites and who were indeed looking for porn videos. A user who knows that he has searched for porn will be in two minds and may not even really know which site was actually called up. Conversely, he will also hardly be able to exclude the possibility that he had not actually familiarized himself weeks or months ago with “Amanda’s Secrets”.
Let’s do some arithmetic here using fictitious but not unrealistic figures: 50,000 cease and desist letters were sent. 20% of recipients pay immediately. This means that 10,000 users each pay EUR 250.00 – a total of EUR 2,500,000.00. The remaining 80% of persons cautioned do nothing; one or other may possibly pay after the first or second reminder and a few may take legal action. This process is then drawn out at great length, which may result in cheap judgment by default “without recognition of a legal obligation” being issued or recognition of the cause of action “without prejudice for the factual and legal situation”. This kind of judgment does not even include a substantiation on which the other persons cautioned could base their response action. And if all else fails, a new company can quickly be set up – naturally after two and half million euros have changed ownership.
