Recent cases in the German Local Court of Offenburg have confirmed the reluctance of the German public prosecutors in determining the identities of P2P users that have allegedly breached the copyright law.

The German online publication Heise has revealed that in a recent case in the Offenburg court, the judge decided to reject the music industry claims to order the ISPs to reveal the subscribers that were suspected of having infringed the copyright through peer-to-peer applications. The court considered the measure as "disproportionate"and the plantiffs did not show how the alleged offenders had been involved in actions that had created a "criminally relevant damage".

The Offenburg Local Court confirms its jurisprudence set on 20 July 2007 when the public prosecutor's office was not allowed to ask the ISPs for the identification of P2P users, considering that sharing some music files via P2P was "a petty offense."

This is not an uncommon practice in Germany, as Heise reveals. The public prosecutor's office in Celle dismissed a complaint by a law firm, known for filing these type of suits on a massive scale for the music industry. The law firm was complaining about the fact that the public prosecutor's office in Hanover refused to start an investigation on order to reveal the names of the persons behind some IP addresses provided by the firm.

But the public prosecutor's office in Hanover was in line with its supervisor in Celle doubting that the law firm was "genuinely interested in initiating criminal proceedings." They considered the offenses as minor and that no substantial damage had occured. The Celle public prosecutor's office said that "some parties may regret the fact" that the legislator has not given holders of copyrights a civil law right to obtain the type of information in question from providers, but such parties "could not however expect such omissions on the part of the legislator to be offset in other areas and in every minor case by the endeavors of the prosecuting authorities with their limited resources."

In a reply in a similar case when a law firm asked the identification of 9,186 IP addresses, the chief public prosecutor's office in Berlin went on accusing the copyright holders of trying "under cover of pretending to want to initiate criminal proceedings to obtain for free and by exploiting the limited resources of the prosecuting authorities and at the expense of the budget of the federal state of Berlin the personal data required for the successful pursuit of civil claims".

The German examples bring more trouble to the file-sharing lawsuits initiated by the music industry, after the recent opinion of the Advocate General Juliane Kokott from the European Court of Justice (EJC) who considered that, according with the EU law, the ISPs are not obliged to reveal personal data in civil litigation cases.

This opinion was recently brought in front of the public eye in Sweden, where the Justice Department announced that a new legislation that would allow the copyright holders to obtain the identity of people that share illegal content over in the Internet could be initiated by the Swedish Government. Rickard Wessman, spokesman for Justice Minister considered the opinion as "hard to interpret" and affirmed that they were waiting for the final result from the European Court of Justice in that case , but still "believe that our proposal is compatible with the directive. "

Public prosecutors refuse to collect IP address-related information from providers (2.08.2007)
http://www.heise.de/english/newsticker/news/93759/

Music industry rebuffed across Europe on file-sharing identifications (3.08.2007)
http://www.out-law.com/page-8353

EU court 'could scupper Swedish piracy law' (22.08.2007)
http://www.thelocal.se/8263/20070822/

EDRI-gram : ECJ's Advocate General says no handing traffic information in civil cases (1.08.2007)
http://www.edri.org/edrigram/number5.15/traffic-data-civil-cases

EDRI-gram: Sweden wants tougher laws against file sharers (18.07.2007)
http://www.edri.org/edrigram/number5.14/sweden-file-sharing