I had a hard time understanding this article, so I looked up some German resources and also the original letter linked in the article. Still, the sum is still confusing. Here's what happened:
1. This swiss company got the home addresses of the people by deceiving the court in the first place. They suggested that the people in question were using a file sharing platform, not a streaming website (former is illegal, latter is not).
2. Then, they sent thousands of cease-and-desist orders to these people, claiming that "streaming a video" means that you store a video temporarily (or permanently) on your own device, which is infringement of copyright (and utter bullshit, because it isn't according to German law).
3. All in all, they probably got a few bucks out of this trolling, but they are unlikely to be successful in court, because it is not illegal in Germany to consume copyright protected material. You may not provide it (upload it). This would be illegal. But this didn't happen in the first place. The people who should get a cease-and-desist order is RedTube for uploading and streaming copyright protected material.
All articles also talk about this weird software "gladii 1.1.3" without talking about how this software can collect IP addresses in the first place, if you connect to a server (RedTube) and not to a bunch of random peers.
I wonder how. The spoofed domain explanation doesn't make any sense. If you you are able to redirect users to download from your own servers you don't need any additional software to find out their IP address. Maybe what gladii does is to embed code into the movie file itself so it can be used as a honeypot. I'm not familiar with the swf format or whatever they host on redtube to know whether that is possible.
> They didn't send cease and desist letters. As I understand it they asked for money right away.
That’s sort of combined in Germany. You can ask for (reasonable) damages and lawyer fees plus for people to sign a ceae and desist. (Of course, in actuality those letters can ask for anything they want. It just might not hold up in court. That’s why receiving one of those letters as a private person sucks. Those don’t have a lawyer on staff to quickly look those letters over.)
In this case the damages they asked for were €15.50 and the lawyer fees were €234.50 (together €250).
This process exists in Germany to efficiently resolve disputes without having to use the courts (mostly between companies, actually) but when it comes to copyright infringement of private persons one could arguably say that it is abused.
At the moment most people are wondering how these IP addresses were found. This[0] article indicates that they were using redtube.net to gather the IP addresses and then forwarded to redtube.com. (This might be illegal since it would be them distributing pornographic content.)
Also, the way they were charging their fines is probably illegal and they might lose their license over it. Yes, they charged fines directly, those were not just cease-and-desist letters.
(They might also be using CC-licensed templates on their own website without giving due credit. [1])
The article below explains that the website of the company which filed the copyright claims and the website of the company which supposedly created the 'gladii' software are hosted on the same server, contain the same user-id's and were created at around the same time.
about (2): Streaming of copyright-protected media is generally considered legal, only copying is not. But it's claimed that streaming a file to the flash-player is actually "progressive download" and hence falls under illegal copying. (of course for purely technical copying between buffers, temporary files, ... there's even an exemption in the law (§44a UrhG), but that does not stop the lawyers from trying this reinterpretation).
About "gladii": The most interesting thing are the crosslinks between the companies involved. The company that claims to hold the rights to the porn is "The Archive AG" and the company that claims to have determined the IP addresses of porn-consumers is "itGuards, Inc". Normally the expert-witness should be somewhat independent of the plaintiff, but in this case the websites of both parties have been put on by the same user on the same shared webhost: wix.com (funny enough "wix" in German is a homophone of "to jerk off"). (details: http://blog.kowabit.de/porno-sein/). Also both companies seem to be founded within one week in March 2013, possibly on purpose.
Then maybe another interesting thing about these special "Cease and Desist" ("Abmahnung") letters in Germany: As someone has already mentioned, they have been invented to lower the workload of the courts, so that they don't have to deal with trivialities (basically between businesses, mostly used for/against wrong claims in advertising).
But the crucial thing is: The "fine" the receiver has to pay only is allowed to cover a certain aspect: The actual damage (here: possibly $10 for a porn-movie) and expenditures that the rights-owner had to pay to the lawyer. So if a nice lawyer sends out 100'000 cease-and-desist letters at a flat-rate of $10000 in total, you'd only be allowed to "fine" the receivers $10 for the porn-movie + 10 cent + postage or so. And if the lawyer "fines" the receivers $100 per rights-violation, he technically would have to bill the rights-owner 10 million dollars, even if the cease-and-desist doesn't have any merit, every single receiver would ignore it, and a judge would through the case out. Unfortunately there's no way to force the lawyer or rights-owner to let anyone know about their contracts, but sadly this makes almost every "Abmahnung" an invalid one, even though no one can proove it.
See my comment above. It isn't. They deceived the court to get addresses of people and then sent letters to people to scare them and make a few bucks. It doesn't hold up in court.
One very interesting aspect is how they got the IP addresses in the first place. There is some evidence that they bought traffic from a traffic broker, redirected that through their on domains and then to the final target.
If it happened that way, it does seem very unlikely that they would have any chance to succeed before a court. They can't prove that the user actually intended to see the video in question, they can't prove that they actually arrived at the target site and saw the video.
Summarizing the heise.de article: apparently someone put links to porn-broker trafficholder.com somewhere, there the requests got redirected to the freshly registered movfile.net, forwarding to redtube.net. On movfile.net the IP addresses got harvested. trafficholder.com was primarily used to generate traffic from Germany to the videos in question.
If this is what happened it seems a bit more far-reaching than just an exploit of IP law challenged courts.
This is just another example that shows it is not so much the law that is broken in the face of new technology (although it could use some updating), but the utterly clueless interpretation of the law by the courts that is the main problem.
Just like for instance the Pirate Bay blockades we keep seeing instances where courts can easily be tricked into implementing measures or allowing evidence that the legislature would never approve of.
This is an info-graphic provided by some committed German guy. It shows the daily views of the video before and after the video-rights were sold to the swiss company. Maybe you guys notice something :)
Some people are counter-sueing. But it's risky (because not every judge understands the technical details, e.g. one court obviously mixed up streaming with ordinary file-sharing) and expensive. And last but not least it's embarrassing for many people because it's porn.
There's no equivalent in class action suits in germany. And then, the company claiming the copyright violation is a swiss company, so to counter-sue and receive a compensation for your costs and fees, you'd have to sue them in switzerland under swiss law. The claimed amount is low enough that it's way less costly to just pay up and leave it at that.
For the general good it would be better if everybody countersued. However, what I can see coming in this case that the matter may proceed to become a criminal case against "The Archive" which then would be a different story. There's still hope.
The way I would get the IP addresses is to threaten the redtube.com website with a copyright infringement lawsuit and offer them to sell the IP addresses instead. Win-Win.
Another way is to set up other websites that redtube users would likely visit (maybe even advertise from redtube), then find out if they have visited certain links on redtube. There may be certain exploits to do that, be it flash or even the css "old links" trick. Then you could at least claim that the IP addresses actually visited the videos in question even though the site did not cooperate and no wiretapping was necessary.
> The way I would get the IP addresses is to threaten the redtube.com website with a copyright infringement lawsuit and offer them to sell the IP addresses instead. Win-Win.
Not by German privacy laws. IP addresses are considered "personal" data, and selling it to a third party would be quite costly if discovered.
28 comments
[ 5.7 ms ] story [ 62.2 ms ] thread1. This swiss company got the home addresses of the people by deceiving the court in the first place. They suggested that the people in question were using a file sharing platform, not a streaming website (former is illegal, latter is not).
2. Then, they sent thousands of cease-and-desist orders to these people, claiming that "streaming a video" means that you store a video temporarily (or permanently) on your own device, which is infringement of copyright (and utter bullshit, because it isn't according to German law).
3. All in all, they probably got a few bucks out of this trolling, but they are unlikely to be successful in court, because it is not illegal in Germany to consume copyright protected material. You may not provide it (upload it). This would be illegal. But this didn't happen in the first place. The people who should get a cease-and-desist order is RedTube for uploading and streaming copyright protected material.
All articles also talk about this weird software "gladii 1.1.3" without talking about how this software can collect IP addresses in the first place, if you connect to a server (RedTube) and not to a bunch of random peers.
Edit: Clarification in 1.
No, I think the Swiss lawyers provided the IP addresses asking the court to make Deutsche Telekom reveal the users' true identities.
>Then, they sent thousands of cease-and-desist orders to these people
They didn't send cease and desist letters. As I understand it they asked for money right away.
>All articles also talk about this weird software "gladii 1.1.3" without talking about how this software can collect IP addresses in the first place
That is indeed the interesting question. Apparently the court asked an expert to evaluate the software and the expert confirmed that gladii 1.1.3 could do what it claimed: http://translate.google.com/translate?sl=auto&tl=en&js=n&pre...
I wonder how. The spoofed domain explanation doesn't make any sense. If you you are able to redirect users to download from your own servers you don't need any additional software to find out their IP address. Maybe what gladii does is to embed code into the movie file itself so it can be used as a honeypot. I'm not familiar with the swf format or whatever they host on redtube to know whether that is possible.
That’s sort of combined in Germany. You can ask for (reasonable) damages and lawyer fees plus for people to sign a ceae and desist. (Of course, in actuality those letters can ask for anything they want. It just might not hold up in court. That’s why receiving one of those letters as a private person sucks. Those don’t have a lawyer on staff to quickly look those letters over.)
In this case the damages they asked for were €15.50 and the lawyer fees were €234.50 (together €250).
This process exists in Germany to efficiently resolve disputes without having to use the courts (mostly between companies, actually) but when it comes to copyright infringement of private persons one could arguably say that it is abused.
Also, the way they were charging their fines is probably illegal and they might lose their license over it. Yes, they charged fines directly, those were not just cease-and-desist letters.
(They might also be using CC-licensed templates on their own website without giving due credit. [1])
[0] http://www.heise.de/newsticker/meldung/Porno-Abmahnungen-Ind...
[1] http://www.heise.de/newsticker/foren/S-urmann-com-CC-lizenzi...
The whole thing is a scam.
http://translate.google.com/translate?hl=en&sl=auto&tl=en&pr...
About "gladii": The most interesting thing are the crosslinks between the companies involved. The company that claims to hold the rights to the porn is "The Archive AG" and the company that claims to have determined the IP addresses of porn-consumers is "itGuards, Inc". Normally the expert-witness should be somewhat independent of the plaintiff, but in this case the websites of both parties have been put on by the same user on the same shared webhost: wix.com (funny enough "wix" in German is a homophone of "to jerk off"). (details: http://blog.kowabit.de/porno-sein/). Also both companies seem to be founded within one week in March 2013, possibly on purpose.
Then maybe another interesting thing about these special "Cease and Desist" ("Abmahnung") letters in Germany: As someone has already mentioned, they have been invented to lower the workload of the courts, so that they don't have to deal with trivialities (basically between businesses, mostly used for/against wrong claims in advertising).
But the crucial thing is: The "fine" the receiver has to pay only is allowed to cover a certain aspect: The actual damage (here: possibly $10 for a porn-movie) and expenditures that the rights-owner had to pay to the lawyer. So if a nice lawyer sends out 100'000 cease-and-desist letters at a flat-rate of $10000 in total, you'd only be allowed to "fine" the receivers $10 for the porn-movie + 10 cent + postage or so. And if the lawyer "fines" the receivers $100 per rights-violation, he technically would have to bill the rights-owner 10 million dollars, even if the cease-and-desist doesn't have any merit, every single receiver would ignore it, and a judge would through the case out. Unfortunately there's no way to force the lawyer or rights-owner to let anyone know about their contracts, but sadly this makes almost every "Abmahnung" an invalid one, even though no one can proove it.
If it happened that way, it does seem very unlikely that they would have any chance to succeed before a court. They can't prove that the user actually intended to see the video in question, they can't prove that they actually arrived at the target site and saw the video.
Some more recent information in german about this is at http://www.heise.de/newsticker/meldung/Porno-Abmahnungen-Ind...
If this is what happened it seems a bit more far-reaching than just an exploit of IP law challenged courts.
Suitable name for a porn company: Matratzensport = "mattress sport".
Just like for instance the Pirate Bay blockades we keep seeing instances where courts can easily be tricked into implementing measures or allowing evidence that the legislature would never approve of.
https://dl.dropboxusercontent.com/u/2512901/abmahnwelle-redt...
For the general good it would be better if everybody countersued. However, what I can see coming in this case that the matter may proceed to become a criminal case against "The Archive" which then would be a different story. There's still hope.
Another way is to set up other websites that redtube users would likely visit (maybe even advertise from redtube), then find out if they have visited certain links on redtube. There may be certain exploits to do that, be it flash or even the css "old links" trick. Then you could at least claim that the IP addresses actually visited the videos in question even though the site did not cooperate and no wiretapping was necessary.
Not by German privacy laws. IP addresses are considered "personal" data, and selling it to a third party would be quite costly if discovered.
Maybe redtube uses this functionality to get the stream faster to everyone.