Today, the Swiss were Logistep judgments published
1C_285/2009 from 09/08/2010
and the 295
First commentary by David Vasella .
comment RA Sebastian Dosch .
commenting Shual: The verdict against the Logistep is divided into two main areas. RA Sebastian Dosch dealt with sufficiently to actually refreshing logic put forward views on whether an IP address is now a personal date-related or not. A comparison of the arguments to the Supreme Court ruling "autumn of our Abmahnerexistenz" from 05/12/2010 to today takes too long. A key point as an example.
" This means for the present case that is not required, that the copyright infringer already for the respondent determined. It is sufficient if they are to supply the appropriate data for the copyright owners. There "vs." The IP address therefore produce no reliable information on the person using a particular time a particular internet + The assignment of a used at a particular time dynamic IP address to a connection holder no statement shall further with whom the person has communicated about and how long . "
The German judges are trying to address the vehicle of nuisance liability to approach the topic in which they explain that the determination of the barter exchange company established criminal act is not an infringer, but an injury by "someone" is. Here of course there is a logical problem, because it "speaks ... a presumption of fact that this person is responsible for the infringement ." The connector holder is therefore required according to the secondary burden of proof to comment on the injury. If he can not he should be classified as offenders. The Swiss judge, however, see already ( "Well it must be assumed that in many cases of copyright infringement can not be found, especially when different people to a computer or network access. However, it is sufficient that the determinable in respect of any part which is given by the Respondent stored information. ") by the possibility of part of the overall data determined an infringer to identify a sufficient connection to privacy rights of the offender.
From interest is thus the area: "The actions of the respondent conclude, moreover, that the IP address owners to be notified at the time of purchasing including its data would be stored. Even if it were true that would be made occasionally to point out that "anti-P2P companies log data," could by no means an indication of the purpose of data collection by the Researcher are spoken. Both the principle of purpose as well as the principle of recognition would violate a regular basis. "Swiss courts can see also the German § 28 BDSG , violated Section 1. The issue of recognition of the investigation is also very exciting. Naturally is not running as a determining company must disclose their identity on the Internet. But it should be clear that conflicts the anonymous collection of data for commercial purposes with the purpose of prosecution. Would an investigator firm occur earmarked and identified were probably not a violator would be so stupid one violation of the law to commit on its own (though the fools will never die and operates variety of unprotected Wi-LANE what lowers the threshold).
In fact the surgery as "Covert" only under special conditions possible, for example when it comes to serious crimes. It is also under protection and to distinguish active investigation. The German Federal Supreme Court ruling (in contrast to the ridiculous press releases Logistep AG shown) of no way deals with the investigating, but the recovery of data in information processes. It does not matter whether you can now see the IP address as the stock market date or date.
It is to be kept, however, that "... It for the legislature and is not of the judge to take all appropriate measures necessary to ensure the new technologies appropriate copyright notice . "The German Federal Supreme Court recognizes here the will of the legislature in pursuit of rights abuses. However, missing the turn, been called by the Swiss clear statements of Logistep AG to the actual use of the data sets and legal barriers. We know the phenomenon of abuse of the data identified well enough. It is expressed in Absurdforderungen, the "compilation warnings" of issues, the various margins of the investigators and the information provisioning places serious procedural errors the law firms, fundamental concerns to the actual probative value of a "Loggerbudenfreßzettels" which involves periodically serious error in itself, a lack of legal action after being advised to be organized at all, given the mass of now 1.2 million warnings and of course the various problems that the transfer of rights or even of action, ie admonish the actual authority to begin.
The will of the legislature, it was a grand mess in the even the most dubious claims are supported to create?
Now to the main point of the appeal.
" represents the proceedings of respondent libel dar. "
" yielding Moreover, such a (possibly judicially confirmed) Recommendation, an indirect effect for all those who have acted in a method similar to the complainant ... "
This final qualification identifying himself as an infringement of personal rights far-reaching consequences. In addition to the existing information rights to examine how far to block the transfer, a deletion and a einhergehden with the personality Retz injury damage can be enforced in the courts. Voluntarily, the Logistep AG Abgemahnt not compensate for the infringement of personal rights. Other claims can be thought not. [See Judgement of 09/09/2010, Higher Court of Canton train (Az JS 2010 44 and JS 2010 45)]
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