The problem of outdated laws inflicting unpredictable, massive penalties on people who use the Internet in unapproved ways (see Aaron Swartz) is also acute in Germany. Case in point: In 2000, a highly unusual-looking man, seeking attention, went out onto the streets of Berlin to dance in a techno-parade. Another attendee filmed him doing his thing. This is the result:
Notice that there's no attempt to conceal the filming. The filmer, Matthias Fritsch, decided to post the video online, figuring it might amuse other people. Indeed it did: the man in the video became known as the Technoviking, and his moves spawned an Internet subculture. Fritsch even made a modest amount of money from all the YouTube views.
And now, thirteen years later, he faces bankruptcy and jail. The Daily Dot reports:
[Fritsch stated:] "I am being accused for creation and publication of images connected to
the Technoviking, therefore infringement of personality rights. They
also say I am earning a lot of money by that. They argue that [I] gave
him the name Technoviking, create 3D characters, comics and more to
constantly increase the popularity in order to market Technoviking and
therefore cause damage to the protagonist"
If Fritsch loses, so does the Internet. He'll have to scrub any original
content he created that featured the Technoviking's likeness, and he'll
be barred from creating new content. Worse, the lawsuit accuses him of
creating numerous other derivative works, most of which Fritsch says he
Failing to do that, Fritsch would face a €250,000 ($334,441 U.S.) fine
and up to six months in jail. Fritsch said the lawsuit only includes
content he allegedly posted, so no matter the result of the trial, other
Technoviking remixes around the Web are safe—for now.
"I can't say how far his intentions go for removing content that is
posted by other people," Fritsch said. "It would be a Don Quixote action
to try removing Technoviking from the Web."
Fritsch, who still won't reveal the Technoviking's identity despite the
lawsuit, said he's not really worried about the trial. He doesn't take
credit for the Technoviking character, which he believes was born out of
the collaborative creativity of millions of Internet users.
"I am only worried that the judge might not understand contemporary
web-culture and therefore judges from an old fashioned perspective,"
Fritsch said. "Artists are not rich usually and I am one of those
artists. To put me in a financial emergency is really something I
Technoviking's lawyer is almost certainly suing under German Persönlichkeitsrecht, which gives people control over how their own image is disseminated. The most famous case is the so-caller Herrenreiter (g) (dressage rider) decision from 1958, in which a professional horse rider's image was used without his permission in advertisements for a tonic thought to increase male potency. You could also sue for this under the common law, since this is appropriation of someone's unmistakable image without consent or payment to use in advertisements for a consumer product.
However, the common law has a different answer when it comes to people who are voluntarily putting themselves on display in public. In this case, the law generally says that if you volunarily go outside and expose your image to thousands of strangers, you are demonstrating that you don't wish that what you're doing should be kept secret, and therefore your image can be taken and used by others. There is, however, an exception for voyeuristic videos that attempt to reveal parts of your body you would wish to be kept secret (such as upskirt videos). That's obviously not an issue here. Some courts also have an exception when your image is used without your consent for a profit-making enterprise that you certainly would have demanded money for participating in had you known about it.
Under the common law, then the Technoviking video can be legally shared. Technoviking went out into a public festival, where certainly knew he might be filmed, and started dancing. He was sharing his image with thousands of strangers, and obviously enjoyed himself doing so. The artist was not using the Technoviking's image to sell a product, and the money he earned from it was merely incidental to its unexpected success. And it was, of course, money for something he created — the video of an interesting person dancing on the street.
The idea that this could lead to jail time is an absurd consequences of Germany's outdated privacy and intellectual property laws, which also subject you to hefty fines, believe it or not, if someone else (g) posts a copyrighted picture to your Facebook page. The problem here is uncertainty. Germans are normally obsessed with Rechtssicherheit, the notion that the law must be stable and clear, so that private persons can regulate their affairs in peace. But there's a huge hole in that protection when it comes to Internet users. The persistence of these old, overbroad definitions are a constant background threat that chills Internet freedom. Any of you who have a Facebook account could theoretically face a lawsuit tomorrow for something innocent you shared with your friends years ago. All that needs to happen is for someone to find out about it and contacts one of the many German lawyers who specialize in harassing German internet users with ludicrously exaggerated damages claims for infringements both real and alleged.
This is why I have a soft spot for the Pirate Party, for all their shenanigans. None of the mainstream German parties was giving much thought to these issues before the Pirate Party came along. This was due probably in equal measure to technological ignorance, the inherent conservatism of the German legal system, and effective lobbying by the content industry. The Pirates found resonance because they pointed out that outdated laws were making potential criminals of literally millions of citizens, an absurd state of affairs in a country that claims to be governed by the rule of law. The Pirates, in the best tradition of third parties, forced the mainstream to finally face an issue they'd been all to happy to ignore.