We have filed a criminal complaint with the Hamburg public prosecutor's office against the managing director of the law firm U + C Rechtsanwälte URMANN + COLLEGEN Rechtsanwaltsgesellschaft mbH, Mr. Thomas Urmann, on suspicion of a criminal offense, namely particularly serious extortion or particularly serious fraud. Such offenses are punishable by imprisonment for not less than one year.

At the beginning of December 2013, the law firm U + C Rechtsanwälte URMANN + COLLEGEN Rechtsanwaltsgesellschaft mbH sent  large-scale warning letters to alleged users of the internet platform Redtube on behalf of the Swiss-based company The Archive AG due to alleged copyright infringements.

The copyright infringement is alleged to have been committed by the users accessing a stream offered via Redtube. In this respect, the law firm claims that the intermediate storage required when accessing the stream constitutes an act of reproduction under copyright law in accordance with Section 16 UrhG, which took place without the consent of the rights holder and is therefore illegal.

In this way, the law firm U + C is making a legally incorrect but nevertheless apodictic claim of an unlawful act of reproduction to laypersons. The warning letter alleges a situation in which no copyright infringement is to be seen, as the retrieval of a stream via the Redtube platform is in any case permitted under Section 53 (1) UrhG. However, Thomas Urmann claims the opposite to consumers on legal letterhead. Among other things, he threatens them with seeking further state assistance, applying for interim injunctions and assessing the facts from a criminal law perspective. If legal laypersons are to be induced by assertions and threats made by a lawyer with the authority of an organ of the administration of justice to fulfill claims asserted by the latter that do not exist, this is punishable under the highest court case law.

According to the press office of the Regional Court (LG) of Cologne, the Swiss company filed a total of 89 third-party requests for information pursuant to Section 101 (2) in conjunction with Section 9 UrhG prior to the mailing. The aim of these requests was for internet providers to hand over the user data. A total of 16 different civil divisions dealt with these requests, each of which contained between 400 and 1,000 IP addresses. Of the applications, 27 were rejected or withdrawn by the applicant company following a notification from the chamber. Assuming an average value of 700 IP addresses for the 62 approved applications, the number of requests granted could be in the mid five-digit range.

The sensational effect of the wave of warnings is also due to the fact that these are the first warnings for streaming protected works. It was only a matter of time before the mass warning letters, which are suffering from the new legal restrictions and declining infringements, would try to exploit this area for themselves. Due to the mass warnings, sharing via peer-to-peer networks has become less attractive for users. In addition, streaming is a technically interesting alternative in view of ever faster internet connections.

There is considerable uncertainty as to whether streaming can be considered an unlawful act of reproduction and therefore constitutes a copyright infringement for which a warning letter can be issued. This is because there are strong arguments that caching is permitted under Section 44a UrhG. However, to date there have been no court decisions on this issue and it is the subject of controversial debate in the legal literature.</p

Even if streaming were to be classified as an act of reproduction requiring consent, it could possibly be privileged under Section 53 (1) UrhG. According to this provision, it is permitted to make a copy of a copyrighted work, provided this is not done for commercial or public use and the user cannot recognize that an obviously unlawfully produced or publicly accessible template has been used.

In the case of Redtube, however, the latter is not the case. In contrast to platforms such as YouTube, it is not possible for users to simply register and upload content. The publication of the films is the sole responsibility of the portal operator, which in this case is a company that is well-known in the field of internet pornography. The user can therefore generally assume that at least the portal operator has acquired the necessary rights to the films. This is indeed often the case, as many producers make some of their videos available on platforms such as Redtube for advertising purposes. For the user, it is absolutely impossible to tell whether a particular video has been uploaded to the platform with or without the consent of the producer. It is therefore highly questionable whether the warnings are justified at all.

The decisions of the Regional Court of Cologne that have been published or discussed on the internet to date do not in fact explicitly address the question of whether streaming constitutes an obvious infringement. However, one of the decisions in question states succinctly: "... the unauthorized making available to the public of the protected work ... via a file-sharing platform also constitutes an infringement within the meaning of Section 19a UrhG." The judges therefore obviously assume an infringement of rights via a file-sharing platform. However, no such case was dealt with in the aforementioned decision, which incidentally was not submitted by the law firm U + C, but by lawyer Daniel Sebastian. Instead, it refers to download portals.

There therefore appears to be a discrepancy between the aforementioned decisions of the Cologne Regional Court and the actual content of the applications.

Although the recently revealed application documents are similar in form and content to those used in file-sharing cases, the judges should have examined them more closely. It would be extremely worrying if other similar decisions were to come to light in the coming days and weeks. This would undoubtedly be a scandal. But how could this situation have come about in the first place?

According to the business distribution plan of the Regional Court of Cologne, two special chambers have been set up for copyright matters. However, information proceedings pursuant to Section 101 UrhG are excluded from this regulation. According to the business distribution plan, 28 of the total of 40 civil chambers established are responsible for these proceedings in the so-called "Turnusverfahren U". Responsibility changes on a weekly basis, meaning that each of the 28 chambers deals with such requests for information around five times a year.

It is obvious that not every judge enjoys this work, which also involves weekend duties, and not everyone is familiar with the legally and technically complex special subject matter. Moreover, if you only have to deal with it a few times a year, it is understandable that mistakes can happen. Nevertheless, this situation undermines the original intention of the legislator, namely to ensure that the interests of the parties concerned are thoroughly examined and weighed up through the consent of the judge.

During the legislative process, the judicial reservation provided for in Section 101 (9) UrhG was controversial. The Bundesrat in particular cited the burden placed on the judiciary by these mass proceedings as a counter-argument. Nevertheless, the Federal Government's draft prevailed. This is also the reason for the distribution of the proceedings to the majority of the chambers at Cologne Regional Court: as the court responsible for Deutsche Telekom, it has simply had too many applications to deal with since the introduction of the authorization procedure pursuant to Section 101 (9) UrhG. However, if the assumption is correct that a number of further authorization orders were wrongly assumed to be a file sharing case due to insufficient examination, then the judicial reservation for the ordering procedure provided for by the legislator would effectively become ineffective.

An equally interesting question at present is how the rights holder issuing the warning obtained access to the IP addresses on which the requests for information are based. The application documents published so far only provide vague information on this. They mention a monitoring software called GLADII 1.1.3. which allegedly can be used to monitor the activities of users of download portals for films on the Internet. However, the application itself does not explain exactly how this software works. Information on this is allegedly contained in an expert opinion by the patent law firm Diehl & Partner, which is attached to the application. However, the Cologne District Court refuses to release the expert opinion and does not allow the press or other third parties to view its contents.

However, the press spokesperson did provide initial information about the content of the expert opinion. According to the report, the aim was to determine whether the monitoring software used on behalf of the rights holder can correctly record download actions on media hosters operated on the internet. In particular, the identity of the downloaded file, the start of the download and the IP address of the downloading computer were to be checked. This was carried out using three test files on three different websites (drtuber, tnaflix and xvideos), in which the videos were displayed in the web browser.

According to the expert report, the expert is said to have accessed the stored test files with different browsers and logged the time. The expert then used the GLADII 1.1.3 software to call up an overview of the monitored media hosters. The software is said to have displayed a range of information, including the IP addresses of the visitors to the respective site. The test retrievals of the above-mentioned files were also displayed. According to the expert opinion, the logged times and actions should have corresponded exactly with the test retrievals. According to the summary of the expert opinion by the Regional Court of Cologne, the actions carried out during the tests were "technically based on standard Internet technologies, which, when used in the test scenario used, did not give rise to any concerns regarding possible violations of the law".

The exact procedure used by GLADII 1.1.3 to obtain users' IP addresses remains unclear despite the above information. In contrast to file sharing, streaming usually only involves a direct connection between the user's computer and the video portal server. Normally, third parties, such as rights holders or their lawyers, cannot retrieve any data via this connection. A release of the expert opinion by the Cologne Regional Court could possibly clarify this. The court's refusal on this point is difficult to understand, particularly in view of the considerable public interest and the fact that such expert opinions do not normally contain any personal data of third parties that would prevent publication.

Es ist jedoch auch möglich, dass das Gutachten keine klaren Informationen zur IP-Ermittlung liefert. In diesem Fall hätten sich die zuständigen Kammern, die die Gestattungsanordnungen erlassen haben, mit dieser Frage auseinandersetzen müssen. In den bisher bekannten Beschlüssen scheint dies jedoch nicht der Fall zu sein. Es wird interessant sein zu erfahren, ob die Kammern, die im Gestattungsverfahren bei der antragstellenden Rechteinhaberin Rückfragen gestellt haben, diesbezüglich weitere Untersuchungen angestellt haben. Eines ist jedoch klar: In Massenverfahren mit komplexen technischen Fragestellungen kann der Richtervorbehalt seinen Zweck verfehlen, wenn die Justiz – möglicherweise aufgrund von Personalmangel – nicht angemessen auf die Bewältigung der Verfahren vorbereitet ist.