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Rant: German company claiming German law = Global law
randvegeta
Member, Host Rep
in General
Apparently the company Comeso.org is under the impression that German law is global law. They have cited that wherever a German may be involved, German law applies. And since the internet is accessible to all Germans, German law apparently applies.
Anyone know who these clowns are?
Comments
What place of fulfilment and place of jurisdiction have both of you agreed on at the time that the contract was signed?
//Edit: Okay, I looked at their site and you probably do not have a contract with that company, but rather get harrassed by them in the name of one of their clients.
Do you explicitely target a german audience or have services operated from Germany? If not, then I would ignore their claims. Otherwise it could indeed become relevant.
Ah I've seen hundreds of emails from similar companies in the US too
If you don't operate in Germany or have services based in Germany (German law would apply to those servers / services) then you can safely just ignore them
(I am not a lawyer, for peace of mind it may be helpful to consult an actual lawyer)
You need to provide more details. Many countries have piracy laws that are often not enforced - unless somebody asks for it to be enforced. So I doubt that it's just about German law.
If they're trying to enforce German law on you, tell them that you're not in a German territory, nor are your servers.
Same thing happens with DMCA complaints, copyright
trollsholders should quote the laws relevant to where the activity is taking place or else it's about as valid as an old man yelling at clouds.It seems those comeso guys are a bunch of content mafiosi who try to impress on their web site. Besides they seem to be a rather unimportant player (who tries hard to look bigger than they are).
German law, like any other law is limited to its country, i.e. .de domains, servers in germany and entities within germany (not necessarily germans).
Unless you are in germany, use .de domains (I strongly advise against. denic is known to be bureaucratic and corrupt), or have or work for a german company or use servers in germany you can tell comeso to go fuck themselves. (And even if some of the above applied that still wouldn't mean that you have to dance to comesos tune without e.g. a court order).
The website in question resolves to Cloudflare and I am unable to confirm our IPsa re even involved, let alone if their claims are actually valid.
When I visit the website, it shows nothing more than 404 error page. Apparently you need a German IP to visit the site. You also need a login to the site and be able to read German in order to use the site.
As such they cannot provide a single link which shows any copyright material is being served off our IPs.
We're not even European!
HK have copyright laws, as does everywhere else! The problem is they have not been able to show that copyright infringement has taken place, let alone on our servers.
We're not 'bullet proof' host. If we find a violation of our TOS or local laws, the customer must either take action or expect their server / hosting account to get shut down.
But these guys are just saying 'you host this' without providing any proof that we do. Even if we do host them, they have not shown how our TOS or HK law has been violated. So they need to show our servers / IPs to be used for something illegal that we verify through reasonable means. If we need to use some special German proxy, buy an account with the site, pay a translator to navigate and LOOK for infringing material, that in my mind is unreasonable. That's their job, not mine.
We've had a few reports from this lot - generally they provide the usual stuff (infringing link, original content, oath of authorization) and are generally reasonable to work with.
This is generally all the information that you need to handle the infringement under your applicable law, rather than German law.
If the site in question is on cloudflare, you should receive the abuse report via cloudflare and they will give you the information necessary for you to confirm the origin is on your network.
@randvegata
According to german law demands must be reasonable (~ i.a. practically feasible without too much burden), appropriate, well founded, and not exaggerated.
That i.a. means that whatever they demand is legally void, unless they a) clearly specify any infringements as well as any demands they have towards you, b) they must support you by providing the necessary information.
Correctly doing it (for them) would mean to clearly specify against which laws any alleged action by any party on your side (i.e. a client) would be - and - they would have to clearly lay down why said action is illegal (unless evident).
Example "Your client [name or IP or any other adequate information] is providing file xyz (exact url), which we reasonably believe (e.g. matching file size, file name,...) to be illegal according to [law § x.y.z]. We are authorized by the legal copyright owner ABC [address, etc] to act on his behalf in that matter, and we demand that you stop that violation with [reasonable amount of time] (and possibly to provide client data)"
Also be aware that many copyright racketeers try to impose willynilly burden such as, eg. "we demand that you provide proof of compliance" which is meaningless. According to german law you must help to stop illegal things and possibly help to identify the party acting illegally but you must not prove anything to anyone but to authorities and courts.
So, unless they tell you specifically what is allegedly illegal and based on what law as well as provide you with the necessary information to reasonably e.g. delete a file or provide a clients data, they can just fuck themselves. You are required to help within reasonable limits but you can't be commandeered around by some guys like that company.
IMHO it's fair to tell them exactly what you wrote and ask for more information/proof, screenshots etc. I don't think you need to scan every single page of sites that you host and look for violations. But you probably want to get rid of bad apples too.
I have said exactly this. Interestingly they started speaking in a far from 'professional' language.
Our client is certainly not a bad apple. We have quite a few resellers and sub resellers and down-streams of sorts and they are not a 'bullet proof' hosts either. It of course sometimes happens that our re-sellers are hosting 'bad apples', but normally we don't bother our clients with notices like these unless we can verify the claim ourselves.
The abuse report needs to make it as quick and easy for us to follow up on. We don't have unlimited man power to obtain German VPN services, sign up to the website, and navigate through the pages in a foreign language. It is up to them to provide us with all the tools and steps to show what they say is true. Which they have not done. Maybe what they say is completely true, but I may as well submit an abuse report to them saying they are hosting a copyright movie that is only accessible when using an HK proxy and then expect them to actually hunt for this file on their server.
Ridiculous.
I think it should be based on the laws of the host country
These guys deal with Copyright related issues and so they can certainly cite HK laws if they want. For many things, I'm sure HK have equivalent laws to Germany and most other countries, but that is not the same thing as they are trying to say. Here is what they are saying:
and
and
Burden of proof is on them in regards to their assertions, otherwise I mean I can go tell them that they owe me two hundred dollars and a cow for fresh milk every day according to AMERICAN LAW WHICH IS A FACT NOT THEIR OPINION too right?
@paco Much like IP trolls, they tend to make themselves noisy enough that most providers will just cut them loose to be done with the annoyance factor.
According to international law, the service you are hosting / running is subject to the local law of that country in which the user resides, where the server hosting the service is located, and which apply to the person or business with whom the transaction takes place.
How this would go in reality;
The company in germany who feels violated files a lawsuit in local court, and then The public prosecutors of your country may file a lawsuit in global court.
And after a decade the video will be taken down /s
All I asked was for some proof that the copyright material is hosted and served on our servers.
As far as I can tell, this is not the case, and given the size of the server, I very much doubt that any content is on the server at all.
Germany's laws are free to apply to people outside of their country, but if a treaty does not exist with the country they are attempting to enforce the law inside of, their options are:
Wouldn't be the first time Germany tried to enforce it's standards on the rest of the world (I'm trolling here).
Intellectual property is protected (almost) worldwide, in Hong Kong as in Germany, since they both are part of WTO, TRIPS and WIPO. DMCA is clearly valid (per se) only within US jurisdiction. In many non-US jurisdictions a "DMCA-alike" complaint are anyway still considered valid, since local laws are usually not so different. In some non-US jurisdictions the term "DMCA" is used in official sources (including HK) to refer to what, as a matter of fact, is a slang to refer to these notices. Hong Kong is still a little bit a "snowflake", given its status. Some HK sites will explicitly say they will receive and conform to "DMCA"-alike notices. A draft regulating (voluntary) take down was... drafted but not yet enacted afaik. So, in theory, a provider doing business down there could disregard any complaint until the wannabe copyright holders file a claim in HK. Probably it wouldn't be wise, yet it wouldn't be wise to accept any complaint coming in a somewhat less-than-clear form.
These "copyright defenders" obviously know the chilling effect of a legal-ish letter. They state that under their German law they have all the rights to enforce their rights and since copyright laws are applicable worldwide... they prospect they'd be succesfull in Court, failing a voluntary takedown. Their goal is to be a gargantuan PITA, and they succeeded so far it seems. Just lovers spat in the business world, if you're never receiving complaints from adversaries and third parties you're doing it wrong
German law does apply to services that target German users. There was a lawsuit against WhatsApp sometime ago because they had a German website but only English TOS. German court order issued against an American company with no local presence.
Keep in mind, if a court order is issued and you ignore it, you might be arrested when entering Germany next time.
There's also the notorious Youtube querelle
We are an HK based company that provide English only language support. We do not target Germans, have no operations in Germany and even our client is not German.
This is really besides the point. For copyright law, HK have similar applicable laws and they should cite those instead.
But the problem here is that we cannot establish that the site in question is hosted on our servers (they claim it to be on one of our IPs) but they have not been able to show that any of the infringing content is hosted on our IPs. In fact they have not even shown any infringement has taken place at all, and there has been no request or notification from either the German or HK authorities so there are no court orders made from any jurisdiction.
If they can demonstrate that our services are invovled in anything illegal, we will take action. This is not the issue. My issue is with this company claiming we are subject to German law.
It's a joke of course, but also not. The assertion that German laws extend beyond their own borders is actually not only incredibly arrogant, but shows a blatant disregard for the sovereignty of other nations.
I am all for following the rule of law, but that would be the law of Hong Kong! This company should respect other legal systems and use the processes put in place by those systems.
Ask Poland just how good Germans at coloring inside the lines..
The fact that they're pointing to you, not via CF means they're likely grasping at straws. I've been sent DMCAs and other threatening letters because I used to host a URL shortener and image host before the rest of the internet spent 5 minutes and made their own. My guess is they've just looked up whois and somehow you were mentioned.
I'd just blackhole their domain with an smtp delay response. Eventually they'll get sick of getting the timeout return bounces and bugger off.
It's pretty common for many nations to claim ETJ albeit usually this is restricted to criminal proceedings. They probably half-baked the argument "you're targeting Germans in Germany therefore we have jurisdiction" and mixed in poor references to the allegedly offending material. Btw, I was reading the Code of Practice Draft... wouldn't it be nice (for you) to just copy+paste the Annex A in the draft and tell them "use that form, or any request will be >/dev/null"?
That's really the key when it comes to violating the laws of a foreign land. In general, this is the most peaceful way such disputes can be resolved if the offended country is truly determined but not wanting an international incident. Because such travel is voluntary, most won't stick their neck out for you if you walk into the trap knowing beforehand that you're a criminal there.
I'm a criminal in a bunch of countries that I consider backwards and irrelevant, whether or not they're aware of it yet. Thankfully, none of them have any power over me, and I wouldn't travel to their shit holes anyway. Basically anywhere "hate speech" (relative) is illegal, nearly anywhere with a state enforced religion, etc.
If your client breaks German law, then, they have to issue a German Court Order to enforce the law breaking inside Germany. This order has no validity at all outside Germany, aka, HK.
If they want to shut down the server, then, they have to apply for an order to a HK Court or issue a law suit in your country's authorities.
If they get such an order, then, and only then, they can enforce you to shut down the server.
Is this a company for real? or a bunch of spoiled kiddos that are trying to bull a company that is operating in another country?
"You might", "there was a subject some time ago", "the owners seem to be"... As we say in Greece, if my Grandfather had wheels, he would be a scooter!
Call them to try to enforce their laws in your country!
Wow! Just wow! As all saying, opinions are like assholes. Everybody have one. And so this German company. Because, all we see is that they are trying to enforce you follow their OPINION of the validity of the German Law to you.
Ask your legal representative to send them a legal letter denying any cooperation with them, except if they fill a claim in HK authorities and have in hand a HK order to do so.
Not at all. Companies are legal entities. They are not physical persons. If there is a german court order against a company for shutting down a server, it applies only to the legal entity, not the owner.
Also, they have to prove to the German Court that the company violate laws of the HK to ask for international approval of the law suit. And the court order has to ask specifically for the arrest of the representative. I doubt that it is so easy in such a case.
This could only be the case if the violation was taking part in the german territory. If the physical server is located in HK, then, the owner should only follow HK authority orders.
This is not true. If a company does not comply with a court order in Germany, an arrest warrant is issued against its representative to force the company to comply.
But the problem here is that we cannot establish that the site in question is hosted on our servers (they claim it to be on one of our IPs) but they have not been able to show that any of the infringing content is hosted on our IPs.
We dealt with them a couple of times and they sent us a list of links (behind Cloudflare) + the origin IP (on our network). You can check if the IP is really hosting the content by accessing the IP directly with a Host header containing the domain name.