The case Peppermint is now known to the people of the Network and seems unnecessary ripercorrerne in detail all the stages.

For the purposes of legal brief reflections that follow just remember that history began on a survey conducted on behalf of a small German label, Peppermint Jam Records Gmbh, un’alttrettanto small Swiss investigative agency, the Logistep AG, with hundreds of thousands of users - not yet know the exact number - the most famous platforms peer to peer. This activity in recent months have helped to identify the IPs of approximately 4000 users Italians who would have made available under the circuits of some P2P music covered by copyright of Peppermint.

Starting from this premise the German label has asked the Court of Rome, as a matter of urgency, a former 156 a LDA156 LDA, to order ISPs that had operated the IPs of those users to provide identification and contact information for these subjects so as to protect their rights against them in court.

Judges of the Court of Rome who received such requests by ordering Telecom to communicate to Peppermint the names and addresses of 4000 users.

The Peppermint, received such information, rather than launch an expensive series of legal actions against the 4000 “pirates” made them direct from a law firm with a letter which aims to resolve “bonariamente” the story by paying 330 Euro against the waiver of any action in both civil and criminal matters.

The incident raises several doubts and misgivings legal, all attributable to the same basic problem: the need to find a balance between the interests of itolari of copyright and those of users.

We start from the beginning.

1. The Logistep AG has dealt with for weeks or perhaps months personal data of hundreds of thousands of users half Europe without seeking any permission or provide any information.

The operations monitoring put in place by Logistep AG are, at least in part, carried out on Italian territory with consequent applicability of disciplian dictated by the Privacy Code that no longer allows for a private entity, to put in place - largely through automated tools - processing operations of personal data such large and indiscriminate.

No doubt, on the other hand, there may be about the fact that IP addresses acquired and catalogued by Logistep constitute personal data of users as easily attributable to their identity.

To be excluded, on the other hand, that the activities put in place by the Swiss company falls within the exemption under Article. 24 of the Code which allows the processing of personal data “to enforce or defend a law in court, provided the data are processed exclusively for such purposes and for the period strictly necessary for their prosecution.”

Neither the Logistep either Peppermint, in fact, have - at least up to this moment - used data collected to enforce “a law in court.”

The conduct of the two companies, peranto, limelight clearly illegal under the terms of existing rules of confidentiality.

2. The Peppermint, however, is currently dealing with personal data of 4000 users “spied” by Logistep, new and self-respect to those originally acquired by it.

They are, in fact, result son oil data matching between IP addresses, information relating to alleged breaches of its copyright and the names of the holders of telephone users corresponding to these IP notified by Telecom.

It ‘easy to assume that many of these data are not correct because not always the holder dell’utenze identified through telephone Telecom coinvciderà even with the person who - according to data acquired by Logistep - would use a platform to peer through a peei certain IP address.

In this respect, treatment that Peppermint is currently putting in place, it is clearly illegal.

3. Such treatment, on the other hand, like the one originally put in place - and perhaps not yet esauritosi - Logistep, should have been notified the Guarantor under Article. 37, lett. D) of the Privacy Code.

Failure to notify the Guarantor under Article. 163 of the Code has for the offender a penalty from 10 to 60 thousand euros.

4. The decisions made by the Court of Rome on each other, for their part, do not appear scevre from misunderstandings and errors of interpretation and seem to arise at odds with the European Union according to which, to read what was written by judges, instead they would have understood interpret discipline force.

Judges of the Court of Rome, in fact, have ordered Telecom to provide the data Peppermint 4000 users on the basis of the provisions of art. 156 bis of Law on copyright, which states “where a party has given serious elements from which we can reasonably infer the merits of their applications and has identified documents, facts or information held by the counterparty to confirm these clues, it may obtain the court’s provision on performance or requiring the information to the counterparty. It may also obtain, which the judge may order the other to provide the elements for the identification of those involved in the production and distribution of goods or services that constitute violation of rights set forth in this law. ”

The Art. 156 bis LDA was, however, added to our implementation in order. 8 of Directive 2004/48/EC of the European Parliament and the Council of 29 April 2004 on respect for intellectual property rights according to which “Member States shall ensure that in the context of proceedings concerning an infringement of an intellectual property right and response to a request justified and proportionate delrichiedente, the competent judicial authorities may order that information on the origin and distribution of goods or services which infringe an intellectual property right be provided by the infringer and / or any altrapersona that:

(omitted)

c) was found to provide commercial-scale services used in infringing activities of a right;

(omitted). ”

The Art. 156 bis LDA, interpreted in the light of that available to the EU Directive, suggests that the Court of Rome was wrong in ordering Telecom to provide the Peppermint data users 4000, under an accelerated procedure held in absence of the latter and, above all, “not on the infringement of an intellectual property right” as foreseen in the European discipline.

Equally wrong is the decision of the judges have identified where the Romans in Telecom “counterpart” of Peppermint and a subject “surprised to provide commercial-scale services used in infringing activities of a right.

On a functional level, the position of Telecom arises in relation to alleged infringement of copyright in the same way as that of producer of the operating system used by users or, rather, the company manufacturer of your PC.

The activities of these entities, in fact, has allowed users to access a platform of peer to peer.

5. Few synthetic reflections, finally, deserves the communication received from the 4000 alleged “pirates” in which Italians - if not playing sull’equivoco at least sull’ambiguità - aims to allow German record label to bring home in a few days, profits probably higher than those collected in the last year.

In the letter, first of all, it suggests that if users will pay the required amount can sleep easy at night protected from civil or criminal actions.

Unfortunately for users, however, the offence their disputed - availability of works protected by copyright through the Internet - is procedibile office with the result that, apart from any initiative of Peppermint they run, however, the risk verdersi to drag before a criminal court.

Another aspect of that letter is not convinced the safety expressed by the solicitors of Peppermint about the “guilt” of the recipient in relation to contestategli conducted and about the reliability of results obtained through the use of software Logistep.

In this respect it seems barely worth recalling that the owners be by a telephone connected to an IP address allegedly used to spread via the Internet some piece of music is not enough to feel condemn the damages that a label record company assumes that you have suffered nor, indeed, to see impose any penalty.

Equally that the data collected by Logistep through its softwate can explain some effectiveness in a civil judgement or criminal in our country, is the whole circumstance to be verified as, among other things, the existing rules concerning the document information .

The defence of intellectual property is one of the pillars of society but we must achieve this while respecting the fundamental rights of users.

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