The International Federation of the Phonographic Industry has run into another roadblock in its legal battles against suspected file-sharers in Europe. German prosecutors have begun denying requests to force ISPs to identify the subscribers behind IP addresses, saying that the alleged file-sharing was a "petty offense."
The most recent ruling came from a court in Offenburg, Germany. Responding to a request from the German music industry for the names and addresses of users allegedly engaged in file-sharing, the court instructed the public prosecutor's office not to turn over the data. According to German-language Heise Online, the court said that the labels did not explain how a "criminally relevant damage" could have arisen from the alleged file-sharing
Under German law, if the IFPI or anyone else wants to get subscriber data from an ISP, it needs to go through the public prosecutor's office. Unlike the US—where the RIAA can file a John Doe lawsuit, obtain an ex parte subpoena, and finger the suspected infringer without his or her knowledge of the lawsuit—German law has no provision allowing for civil proceedings to obtain ISP subscriber info.
The Offenburg decision is only the most recent in a string of setbacks for the record labels in Germany, according to Heise Online. A February complaint made by a law firm that typically handles file-sharing litigation for the music industry in Germany was rejected by the chief public prosecutor's office in Celle. In that case, the prosecutor ruled that the law firm could not demonstrate that any "substantial" damages to the record labels occurred. According to a copy of the letter seen by Heise, the prosecutor's office also expressed doubts that the labels would pursue a criminal case.
Tracking down suspected file-sharers may soon become more difficult throughout the EU. In an advisory opinion released shortly after the Offenburg decision, an advocate general for the European Court of Justice ruled that ISPs are not required to disclose subscriber information in civil infringement cases.
In that case, music industry trade group Promusicae had sued Spanish ISP Telefonica after a number of its subscribers had been flagged for file-sharing on KaZaA. Telefonica had fought Promusicae, arguing that Spanish law only allowed subscriber information to be turned over in the course of criminal investigations, not civil proceedings. Should the advocate general's opinion be adopted by the court—which happens about 80 percent of the time—it would make the kind of legal campaign waged against suspected P2P users in the US all but impossible in the EU.
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