Friday, January 28, 2005

Music Biz Cease & Desists Magazine for Circumvention Article

The German magazine Heise Online has received a cease and desist letter today from the national branch of the International Federation of the Phonographic Industry (IFPI) for publishing an article (German) on circumvention software. The IFPI, representing music corporations worldwide, claims that the article is illegal under the anti-circumvention provision of the German Copyright Law (ยง 95a, German), which prohibits to make available, import, disseminate, sale, reproduce and advertise circumvention hard- and software.

According to the music industry the article goes against the anti-circumvention provision, because: 1) it offered a link to a third-party site where illegal copying software was made available, 2) the article was said to encourage circumvention of DRMs, 3) the article was a forbidden advertisement for circumvention software. The German IFPI division threatens the magazine with a lawsuit if it does not act according to its demands.

Heise Online has responded it will not give in to IFPI's demands. It writes (German) that the article is neither an encouragement nor an advertisement for anti-circumvention software, which is illegal in Germany, as was stated in the article. Linking in online articles is, according to the magazine, a common practice and since its readers can use search engines to find the software also to be neglected.

I'm not sure what the outcome will be from a lawsuit under the German (anti-circumvention) provisions. In The Netherlands a different case of copyright infringement and linkage (ZoekMP3.nl) was decided in favor of a site that offered links to third-parties, which contained illegal MP3s. Part of the Dutch Court's reasoning was based on the argument that these files could just as easily be found by search engines and that the ZoekMP3 site did not host the illegal files on its own servers. Something of an analogy could be drawn with this German situation, but it is too early to tell if the music business will follow up to its legal threats.
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Thru Heise Online (German)

Later: English version of the Heise Online news article

To my comparison with the Dutch ZoekMP3.nl decision, which is up for appeal, I might add the (not-so-recent) news of a student fined by the Norwegian Supreme Court
for providing links to MP3s. The Norwegian Supreme Court did find, contrary to a lower court, that the computer enginering student aided copyright infringement by providing links to third-party sites that offered MP3s. His "napster.no" site, set up as part of a school project, did not host any content itself, as was the case in ZoekMP3.nl and with Heise Online. In the ZoekMP3 case additional argumentation was that downloading as such is not illegal under Dutch law.
As said, the Dutch decision is to be reviewed by an Appeals Court, though the ZoekMP3 site has been shut down already. After the Dutch Supreme Court's acquittal of KaZaA, this will be a case to keep an eye one.

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