The Closing of the Net  "original and valuable"  Times Higher Education

Confidential leaked document reveal draconian plans by Germany's right-wing CDU party  for 3-strikes and criminal enforcement of copyright, plus a new right to protect newspapers online. 

Germany's Christian Democrat party, of which the Chancellor Angela Merkel is the leader,  has  set out plans to introduce graduated response / 3-strikes measures to support copyright in a pre-election manifesto that has appeared on  Wikileaks. The document also calls for strengthened international cooperation against copyright infringement, and for the German police to get more resources to

deal with "the fight againt Internet criminality". 

The CDU proposes measures based on the "British and the French models" aimed at 'stopping rights infringements" It makes it clear thatbroadband providers will be asked to warn subscribers based on allegations of copyright infringement and to  terminate Internet access. 

What is especially interesting about this document - and where it goes further than either the British Digital Britain report or the French Olivennes  report - is that makes a direct link between copyright infringement and criminal offences. This is my conclusion from the language used. For example, it does not once mention peer-to-peer, but in talking about what the French call " les petits pirates",  the CDU  uses the word "Straftat" which translates as   criminal offence. In the same paragraph it uses the the words 'Internet criminality'. Digital Britain does call for increased criminal penalties for IP infringements, but  separates this discussion from the discussion on  3-strikes and civil enforcement (albeit that it is clumsily written, Digital Britain arguably does make this distinction, whereas the CDU document, in my opinion, does not).

This  is my best understanding of the proposals ( line 2608 of the document):  The reference to the French proposals is likely to mean the Creation and Internet law as it was originally, where it included termination of Internet access as a sanction for 'failing to control your Internet accesss' and permiting it to be used for copyright infringement. This was before the ruling by the Conseil Constitutionel which declared that using an agency such as the Hadopi to impose sanctions went against the fundamental right to free speech, which  may provide a cause for the CDU proposals to be criticised.  

The reference to the "British proposals"  implies that they want to use  technical means such as deep packet inspection. The "British proposals", now outlined in the  Digital Britain document,  call for technical measures such as protocol and website blocking.

The implication of the language such as 'Straftat' must be that the CDU proposes to treat  even minor copyright infringements as a criminal offence. Making it a criminal offence would normally mean that the enforcement would be the responsibility of the State, and therefore of the police. Under the CDU version of 3-strikes, the  German police will be given more resources and powers to deal with "Internet criminality".  This could imply that the 3-strikes measures would be run by the State, or it could be a reference to the stalled IPRED2 directive, which seeks to put inplace Europe-wide criminal measures against 'commercial' copyright infringement.

The contradiction in their proposal is that they also call for self-regulation - this would mean a privatised form of criminal enforcement. It runs directly contrary to Amendment 138 in the Telecoms Package, which states that users may not be sanctioned without a court judgement -and maybe it also explains why the  German-dominated EPP group in the main voted against Amendment 138 in the Telecoms Package Second Reading. 

The measures fall within a broader attempt by the CDU to deal with copyright on the Internet, which calls for a general principle of stronger protection of copyright and German cultural heritage, as well as measures to 'protect children' online, and a new measure to protect newspapers with what appears to be a 'performance right'. 

It is also interesting that the word 'Vermittler' has been used in reference to the companies who supply Internet access, instead of the word 'providers'.  Translated, it means 'intermediary' and I believe there is a legal significance under German law, as to the definition of what constitutes an  'intermediary' in this context. The use of the word would anyway seem to be intending to imply  more in terms of  liability than a neutral provider. 


The CDU plans for the Internet and  3-strikes  should also be put in context with the deal between Angela Merkel  and the British Prime Minister Gordon Brown on the Telecoms Package. According to a statement in the European Parliament by British MEP Fiona Hall, there was a deal in which Brown gave Merkel what she wanted for Deutsche Telekom on market access for new competitors, but it was not known what Merkel gave Brown. 


 The CDU plans appeared on Wikileaks . The criteria for Wikileaks are that the document is of political significance and at the time of its first appearance, it was marked confidential.


Here is a rough translation (by me) of the text at line 2608. 

"The Internet is not a rights-free space. Where it concerns small crimes, there should be self-regulation. Following  the British and French models, We want to effectively stop  rights infringements, in which the intermediaries of Internet access rights infringers warn and if necessary, terminate their access. We will push for the  cultivation of  of international cooperation against Internet criminality .

In Germany, we will push hard for a strong pulling together of activities in the fight against Internet criminality.  The Federal Criminal Agency , the Federal office for Information Technology Security and the equivalents in the Laender should be strengthened in terms of resources and technology. The efforts to educate users and the improvements in media competence must be intensified."

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009) German 3-strikes plans uncovered , 24 June 2009. 










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