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Re: quake2 and german youth protection law

MJ Ray <mjr@phonecoop.coop> writes:

> Michael Below <mbelow@antithese.de> wrote:
>> My research has shown that quake2 and quake2-data seem to conflict
>> with german youth protection law.
> As I understand it, you are relying on them being regarded
> "im wesentlichen" the same as a Windows-based quake2 CD.
> I don't know how that term is seen by German law.  From
> bugs.debian.org/313159, you weren't either. What has convinced
> you so strongly since then?

As I wrote, I looked it up. See Nikles et al., page 138, margin number

> There was a post pointing out that quake2 is probably not
> offensive and quake2-data does not contain the questionable
> content and that post went unchallenged.

I think I answered this in the same mail mentioned above, after
looking it up. The quake2-data package contains an installer for the
shareware data files, they are fetched from the net. And as far as I
can see this is "Zugänglichmachen" as prohibited by the law. In the
above mentioned book, "Zugänglichmachen" (=making available) is
defined as opening the concrete possiblity of immediate contact,
directly or indirectly, complete or partially (Nikles et al., p. 138,
no. 18).

About the quake2 package: I looked it up again, there seems to be no
problem: The package description is talking about Quake II in a way
that seemed to violate § 15 par. 1 No. 6 (public announcement, offer
or advertisement): "Quake II is a 3D action game engine in
first-person perspective, commonly known as a ``first person
shooter''.  [...]  You will need to either install the commercial data
from the Quake II CD-ROM with the ``quake2-data'' package, or install
some free data files."

Now I found an explanation for the relevant terms in a penal law
commentary, regarding pornography. This seems to be transferrable
(Nikles et al., p. 123, margin no. 36). According to Tröndle/Fischer:
Strafgesetzbuch, 52. ed., § 184, margin no. 16, the pornographic (read:
youth endangering) character of the offer has to be discernible for
the averagely interested and informed viewer. There may be no doubt
about the content.

Since not every first person shooter is youth-endangering, there is
at least doubt about the character of the offer. So the package
description and thus the quake2 package seem to be alright. Probably
things are different if Quake II is considered so famous that the
averagely interested and informed viewer knows about its
youth-endangering content. But I think the game is old enough now to
be not that famous anymore.

> I questioned the victims of this problem and received no answer,
> although you replied that you would try to look it up. 

You questioned victims? Sorry, I'm not a native speaker. I don't
understand the sense of this sentence. Some days after I replied I
would try to look it up, I went to the library and found the book
cited above. That's what I reported in my last reply to Humberto. And
in that mail, I hoped to answer all open questions.

> It is possible that this law may affect all EU or world mirrors.

Yes, it is possible. But I don't think so. Immediately, this law
applies only to Germany. In addition, people not in Germany are
prohibited to import banned media to Germany by mail-order, as I
explained in that last mail to Humberto (§ 15 par. 1 No. 5 JuSchG).

In § 1 par. 4 JuSchG, mail-order is defined essentially as 
- a transaction for payment ("entgeltlich"), 
- by mail or electronically,
- without personal contact or other means to ensure that media are not
delivered to children or youth.

The mirrors I know don't demand payment, so there is no immediate
danger for them. But, as I wrote in that mail to Humberto, there seems
to be legal risk for CD vendors delivering to germany without age

>> In a discussion on d-l, my conclusions have been accepted.
> There were no replies to your latest claims. Who do you believe
> accepted your conclusions?
> Considering others shown on http://lists.debian.org/debian-legal/ -
> Maybe disagreed with your interpretation or proposed action:
> MJ Ray, Måns Rullgård, Baltasar Cevc, Don Armstrong,
> Florian Weimer
> Not much opinion about quake2 AFAICT: Kai Blin, Francesco Poli
> Maybe agreed with you: Humberto Massa Guimarães

I think I have replied to all the arguments in their mails, after
looking things up in the library. After I did that, I announced that I
would inform the mirrors if they now agreed, and asked for dissent
(twice). You are the only one who has told me that his concerns are
not settled by my findings. 

I think it is the practical way to ask for dissent to prove a
result. Is it custom in here to ask for consent instead?

> More significantly, the package maintainer is unconvinced on
> bugs.debian.org/313159 and I don't think this will convince.

That's my impression too. He was very brief, and obviously very sure
that his packages couldn't be a problem. When I explained my initial
concern in more detail, he didn't reply. But I'm afraid he won't
change the German law that way.

> Why? Well, I don't know Michael Below from Adam. One homepage
> is 404 not found, others date from 1998. As far as I can
> tell, background includes student radio, atom tech and
> socio-economics. My background includes getting punished for
> copyright infringement, so I'm healthily cautious about laws.
> Why should I trust a law interpretation from Michael Below?

I studied law in Bielefeld, Germany, passed the first exams, got a
diploma, am right now in Berlin, working on the second exams that will
allow me to practice law (the final oral exams are due in August). For
the last 22 months, I have been doing internships with a judge, a
state attorney, the civil service and, mainly, lawyers. These
internships are part of the mandatory course for the second exams in
Germany, "Referendariat". Maybe I'm not an experienced lawyer, and I'm
most definitely lacking experience in the field of youth protection
law. But I think I know the basics, and after I read up on this special
issue, I think my results are reasonable.

This doesn't mean I have to be right, of course. But if people think
I'm wrong, I would like to discuss my findings in detail.

>> > I am strongly against directing the German mirror admins about
>> > such an unclear problem. If you want to send them a "this law
>> > may be a problem" statement, fine, but maybe that should go
>> > through debian-mirrors and/or debian-user-german.
> [...]
>> And what do you mean by "maybe this should go through..."? [...]
> I mean, use that for your announcement rather than direct email.

Ok. I got you wrong, sorry. I had the impression you wanted to point
me to yet another and another list to discuss this issue.

I don't know if all mirror admins read debian-mirrors, and as far as I
can tell, this is an issue every German mirror admin should know
about: In my opinion, it would be harmful to the Debian project if
mirror admins got into legal trouble, without being warned, and found
out later that there has been information about the possible trouble
available to Debian. So it seems to be better to mail them directly.

>> According to their web page, the FSF Europe seems to follow a more
>> broad approach, but they don't seem to have a legal discussion
>> list.
> I have a route to do so and will do.

Good. So let's see what they say.

> I say: you are an aggressive person of undisclosed origin who
> wishes to claim a backing from debian-legal that you do not have,
> for an argument based on a questionable-looking interpretation,
> in order to alarm mirror operators and make much work for FTP and
> CD maintainers. You should at least disclose your credentials and 
> do tasks to which you committed. At best, you could build
> consensus rather than defeat challenges.

I'm sorry if my last mail was sounding aggressive. I had the
misconception you wanted to point me to yet another and another
discussion list, and I was disappointed because of this.

Otherwise, I want to make clear that I didn't commit to what you

I am a Debian user for quite some time now, so I want to give
something to the project in return. Because I'm not a programmer, this
turns out to be mainly bug reports. And a bug report is what I did
about the legal situation regarding Quake II.

Because I considered this issue important, and d-l to be the most
likely forum for a qualified debate, I sent a copy of my bug report
here, and I am doing my best to explain why I came to my
conclusions. I am even ready to inform the ftp maintainers, because I
think this is important.

If someone feels he/she needs a second opinion on this, I'm ready to
wait for that. But I don't feel obliged to provide that second opinion
myself. As I explained, I have exams to prepare. Sorry.

Michael Below

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