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Germany considers two-strikes online piracy law

A study proposing a two-strikes model against Internet piracy in Germany is being welcomed by the Ministry of Economics. The study arrives as others in Europe hesitate to ratify the controversial ACTA treaty.

Germany may be on the road to implementing new anti-piracy measures, despite widespread recent opposition to related measures like the Anti-Counterfeiting Trade Agreement (ACTA) across many European nations.

A new report commissioned by the German Ministry of Economics and Technology (BMWi) is looking into the various anti-piracy measures of other EU nations, and has recommended a "two strike warning." This pre-litigation model outlined in the report is being seriously considered by the German government.

The results of the study were hailed as "valuable for further discussion on combating piracy," according to a statement by the parliamentary state secretary at the BMWi, Hans-Joachim Otto.

Some of the key findings in the report were that media markets, such as music and film, for example, were affected by Internet piracy, though the exact impact was difficult to prove. The study went so far as to admit that illegal file-sharing had "not caused any serious collapse in the turnover of the industry."

A computer showing the Pirate Bay website and surrounded by CD-ROMs

The study claimed that media had been affected by piracy, but couldn't say to what extent

Voices of opposition

Given some of the ambiguous findings, critics of anti-piracy schemes have weighed in against the BMWi's recommendation to introduce a two strike model to combat piracy in Germany.

"It is regrettable to see that other countries consider the introduction of repressive measures instead of fixing outdated and profoundly broken copyright laws," said Joe McNamee, the advocacy coordinator for European Digital Rights, in an e-mail sent to DW.

When copyright infringement becomes "ubiquitous," as it was described in a report from the European Commission in 2010, McNamee added, it can only mean that "the law is not credible and not legitimate in the eyes of citizens and, as little as governments want to accept this reality, you can only destroy legitimacy by repression, you cannot create it."

Less punitive, more educational

The German study looked very closely at the French model of Hadopi, the three strikes law that has been in effect there since late 2010. In France, repeat offenders receive two warnings and then, if they are caught a third time, their case can go to court, and offenders can even be temporarily restricted from Internet access. As of October 2011, 165 French citizens had reached the third strike, but none have been prosecuted yet.

Otto, of the BMWi, stated that Germany wouldn't brook such draconian measures, preferring instead to rely on "educating users about illegal downloads and legitimate business models."

But Jérémie Zimmerman, of the French digital rights organization La Quadrature du Net, contends that a strike system is repressive, no matter the number of warnings, calling it "a slippery slope towards increased control and censorship of online communications," in an e-mail sent to DW.

"'Two strikes' or 'four strikes' - whatever strikes approach can only be the wrong solution to the wrong problem," Zimmerman said. "The only solution to end this stupid 'war against sharing,' that depletes the resources of the state in an attempt to safeguard obsolete business models, would be to move away from the repressive approach."

A pirate party demonstration in Germany

The Pirate Party has gained ground in recent elections

Legislative realities

When the BMWi presents the results of the study and its own findings to the government on March 15, the likelihood of success for a bill to implement a two strikes law is fairly low, according to experts.

"I think that this approach won't be introduced as a bill," Dominik Boecker, a Cologne-based IT lawyer said in an e-mail sent to DW. "The approach is politically too short-sighted, even if one wants stricter rules against file-sharers."

Whichever political party broached the subject would suffer severe losses with younger voters who have grown up with the internet, Boecker argued.

The politics would be a dicey element to navigate for any potential bill proposal, especially in light of the advances made by the German Pirate Party in recent federal and state elections.

"The Pirates are, in my opinion, likely to try and capitalize on the study and may garner some additional support," said Christian Engelhardt, an intellectual property specialist at Latham & Watkins.

Malte Spitz at the Green party congress in Kiel in 2011

Malte Spitz hopes the study doesn't lead to a bill

"The Green party will, I believe, oppose a bill based on the study due to fears of losing voters to the Pirates if not out of principle," he said. "All digitally conscious politicians will have to address the data protection issues associated with a 'pre-litigation' model since it would involve using personal data which providers would have to supply. In light of the status of data protection in Germany, this is a major issue even though providers can already be made to supply such data."

Green Party member and parliamentarian, Malte Spitz, emailed DW citing opposition across all the major political parties to the two strike law concept proposed by the BMWi.

The Green Party would certainly have issues with any attempt to bring such legislation into being, he said.

"We need modernization and reform of copyright, not a policy that focuses on stronger enforcement," he said. "We see huge problems concerning privacy and civil liberties in such a model and therefore would oppose systems such as the one implemented in France."

ACTA on the ropes

An anti-ACTA demonstration in Berlin

Widespread anti-ACTA demonstrations caused politicians to lose enthusiasm for the treaty

Momentum in policy circles, as well as at the popular level, already seems to be swaying against stricter policies for copyright infringement.

On February 10, the foreign office deferred signing the Anti-Counterfeiting Trade Agreement (ACTA), as justice minister Sabine Leutheusser-Schnarrenberger suggested that the government was not prepared to give the treaty the green light.

Public demonstrations across Germany and throughout Europe have painted this issue as contentious, as the European Commission subsequently sought to have ACTA ruled upon by the European Court of Justice on Wednesday.

The fate of any German pre-litigation model certainly hangs in the balance of the future of ACTA, according to Malte Spitz, who called it a "pre-decision" for German lawmakers.

"If ACTA was adopted and ratified by the European Union, it would mean that these cooperative, voluntary measures -- and, as a consequence, violations of citizens' fundamental rights -- become the rule instead of being the exception," concluded McNamee, of European Digital Rights.

Author: Stuart Tiffen
Editor: Cyrus Farivar

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