Re: quake2 and german youth protection law
Hi,
as promised I looked it up at the library. I found the book
Nikles et al.: Jugendschutzrecht, München 2003.
This led me to a left out part in my interpretation of the
Jugendschutzgesetz: § 1 defines the used terms. I hope if I translate
this also, my understanding of the law becomes more understandable :)
§ 1 Begriffsbestimmungen
...
(2) Trägermedien im Sinne dieses Gesetzes sind Medien mit Texten,
Bildern oder Tönen auf gegenständlichen Trägern, die zur
Weitergabe geeignet, zur unmittelbaren Wahrnehmung bestimmt oder
in einem Vorführ- oder Spielgerät eingebaut sind. Dem
gegenständlichen Verbreiten, Überlassen, Anbieten oder
Zugänglichmachen von Trägermedien steht das elektronische
Verbreiten, Überlassen, Anbieten oder Zugänglichmachen gleich,
soweit es sich nicht um Rundfunk im Sinne des § 2 des
Rundfunkstaatsvertrages handelt.
Translation:
§ 1 Definitions
...
(2) For the scope of this law, carrier media are media carrying texts,
pictures or sounds on physical objects that are either suitable to
be passed on, designated to be perceived immediately or built into
devices for presentation or play. Electronic dissemination,
leaving, offering or making available is considered the same as
physical dissemination, leaving, offering or making available of
carrier media, except if it is done by broadcast as defined in § 2
Rundfunkstaatsvertrag.
Humberto Massa Guimarães <humberto.massa@almg.gov.br> writes:
>> § 15 Youth-Endangering Media
>>
>> (1) If the inclusion of media in the list of youth-endangering
>> media has been announced according to § 24 par. 3 sentence 1, they
>> may not be
>>
>> 1. offered, given to or otherwise made available to children or
>> youth,
>
> The German Debian mirror does, in fact, "otherwise make available"
> the entire Quake2 for Debian GNU/Linux, without any age check
> whatsoever.
Not directly. It's the carrier media ("Trägermedien") that has been
banned (the ID-Soft CDs), and Debian is not making these CDs available
in any way.
But electronic dissemination is considered the same, see § 1,
paragraph (2), sentence 2. And the broadcast exception at the end of
that sentence doesn't apply to web pages.
Now this still doesn't apply to Debian, because the content made
available electronically by Debian isn't exactly the banned
content. AFAIK the Windows version has been banned.
But paragraph (3) of § 15 applies here, which extends the ban to media
which has essentially the same content. And, with regards to youth
protection, a full installation of quake2 for Debian with those
shareware files is essentially the same as an installation of Quake II
as distributed by ID. This is not a matter of binary identity or
something like that. The youth-endangering parts have to be compared,
considering the overall impression (Nikles et al., Rn. 100). Even
changes in the content don't matter if they don't change the
youth-endangering overall impression.
> The only way I see to solve this is that the German
> mirror erases automagically quake2*.deb from its mirror, including
> the reference to it in Packages.gz and other similar content files.
> The German mirror admin might want to see if any other packages
> contain similarly censored speech (such as Nazi/racist propaganda
> etc).
Maybe there should be a new Debian category, either "non-German" or
"adult". This would make the server operator's lives easier, just like
"non-US".
But I don't think too many other Debian packages will be affected:
Possibly prboom/lxdoom/freedoom, because Doom II is on the list, too,
and these claim to be clones. Otherwise I don't see much
trouble. AFAIK, Debian doesn't contain hardcore pornography or neo
nazi music, which are the most part of the listed "youth-endangering"
content. Games are no longer put on the index, for some years now the
industry has established a self-rating system for age suitability
instead.
> Alternatively, the German mirror could ask for some form of
> authorization that proves the age of the downloader (like pr0n sites
> do). It's terrible, but it's the law.
Yup. But there is a tightening with regard to age verification systems
(AVS) in Germany right now, I just read it on heise.de: One AVS
supplier has sued his competitors that they don't provide enough youth
protection. So now it's no longer enough to enter a valid
name/passport number combination somewhere (they are mathematically
connected, so the AVS could calculate if they fit). You will need to
identify yourself in person somehow once, probably towards the postal
service.
This is nothing I would want to implement for a Debian mirror. And
buying services from one of the existing AVS would be costly, I guess.
> Or you could close the German mirror and German citizens would have
> to download debian from other countries with less censoring laws.
Which would bring the Debian vendors in other countries into conflict
with the German law. The import-prohibition applies to people not in
Germany. So selling Debian CDs to Germany by mail-order would be
against the law, if they contain quake2.
>> 5. imported by mail-order,
>
> No.
Ok, the CD vendors do that, not Debian itself. So you'd say they
should do their own legal research?
>> 6. offered, advertised or announced at a place that children or
>> youth may enter or look into, or by distribution of media outside
>> of the relevant trade,
>
> This should be achieved by the Packages.gz censorship I mentioned.
Yup, or by creation of non-German, or whatever.
>> (3) Without need for inclusion in the list or announcement, the
>> limitations of par. (1) also apply to media which is wholly or in
>> the main the same as media whose inclusion in the list has been
>> published.
>
> This does not apply to debian*.deb, because none of those are in the
> same media as Quake2 (the original id CDs). It's just a compatible
> game engine that happens to play the game files on the original id
> CDs.
Maybe a translation problem. I tried to translate "im Wesentlichen
inhaltsgleich". My dictionary says that "im wesentlichen" is
"essentially, in the main", and "inhaltsgleich" could be translated as
"the same content". So I wrote "in the main the same".
For the legal relevance, see above.
>> Probably the data is more problematic, yes. But see my other mail,
>> I think the quake2 package plus the quake2-data installer could at
>> least be constructed as an advertisement or announcement for Quake
>> II.
>
> It's not advertisement nor announcement, but it *is* "making
Both, I'd say - § 15 (1) Nr. 6 applies, as you wrote yourself.
> otherwise available", if your translation is correct.
My translation is as close as I can get, but of course it's not 100%
correct. The correct, binding text of the law is the German one,
everything else can't be more than an approximation. And I don't even
claim to be a certified translator or something like that. So
corrections to my translation are more than welcome.
As a next step, I think we should tell the german mirror ftp admin
about our conclusions, if we agree on the legal matters.
Michael Below
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