Re: quake2 and german youth protection law

[Michael Below <mbelow@antithese.de>]

MJ Ray <mjr@phonecoop.coop> writes:

> I've been reading around http://www.lehrer-online.de/
> (forgive me, but German law textbooks are not easy to obtain
> quickly in the fens) under Recht: Ausf. Info.: Schulhomepage:
> illegale Inhalte and it looks like unclear cases like ours are
> only punishable if the federal authorities complain and we do
> nothing. Have I misunderstood?

There are different cases mentioned on
http://www.lehrer-online.de/dyn/16.htm

Our problem is not comparable to the first case, I'd say (i.e., not
comparable to linking to online content that had not been publicly
declared to be youth-endangering). Quake II has been put on the index
officially. So the norms I cited in my last mails apply. These norms
require the publication of the original ban. They expressedly not
require the publication of a ban for media that has essentially the
same content.

I'd try and explain the rationale like this: If you know that
something is banned, you should respect the law and not try to
circumvent it by distributing something which is, regarding to youth
protection, essentially the same. This is a different situation than
if you distribute something that has been put on an internal list
only, and you can't know about the listing. Harder standards apply if
you seem to be trying to circumvent the law. (This is my personal
idea, how to explain things in a way comparable to the
rationalizations on lehrer-online.de -- you shouldn't take this as a
basis for further conclusions, the text of the law is more important)

The quake2 case is comparable to the second case on that web page
(offering the ego-shooter "Return to Castle Wolfenstein", which has
been put on the index oficially, for download on one's web page). For
this, the authors of lehrer-online.de deduce a violation of § 4 par. 2
sentence 1 No. 2 JMStV and predict a fine.

The Wolfenstein case has the additional problem that the game contains
lots of swastikas and other nazi symbols, which are banned in
Germany. Using these banned symbols (outside of history education) is
what the cited No. 2 of the JMStV applies to. But in No. 11 of the
same norm it is also banned to distribute media that has been included
in the list of youth-endangering media.

I have to admit that I am not fully sure about the applicability of
the JMStV here. It applies to broadcast and "telemedia". I would have
to do some more research to find out reliably if the Debian package
repositories could be considered "telemedia". A first look makes me
assume that they are probably not, because it seems like telemedia is
content to be consumed online (text, music, images, on-demand films).

Anyhow, the different laws all ban the distribution of media that has
been declared youth-endangering. So the result won't change.

> If that may be a correct understanding, I'm worried about
> scaring off mirror admins with a strong statement that
> exaggerates an uncertain legal situation. If you do contact
> mirror admins, you should include the simplest possible
> option which avoids this uncertainty without harming debian.

I don't know about practical solutions. Leaving quake2-data out of the
repository (and maybe changing the parts of quake2 pointing to the
commercial game) would fulfill the requirements, as would introducing
a substantial age verification.

> The closest example on lehrer-online isn't helpful, as it seems to
> fall back to distribution not being allowed because of copyright,
> just to make sure teachers are scared to distribute game CDs.

That bit about copyright in their answer isn't essential to their
legal conclusions regarding youth protection. It's more like an afterthought.

> So, because we are not offering to supply the Quake II CD-ROM or files,
> nor does quake2 describe where such things are obtained itself, it
> is not such an offer or advertisement?

No. The description is not explicit enough, that's the point (at least
for penal law standards, see below). It's rather technical, just an
advisory that you should install the (banned) Quake II commercial
data. If it was more colorful, making the youth-endangering content
obvious, it would be definitely a problem (compare "Quake II is a 3D
action game engine in first-person perspective" to something like
"Kill all the enemies!  Wade through their blood! Get Quake II!"). As
it is, I am unsure again, see below.

> May quake2-data be a problem under this term?

Yes. There are different cases covered in the JuSchG. One of them is
"announcing, advertising, offering" youth endangering media, one is
"distributing, making available" and another one is "importing by
mail-order". So if the "advertising" case is not present, the other
ones can be.

>> Now I found an explanation for the relevant terms in a penal law
>> commentary, regarding pornography. This seems to be transferrable
>
> Is pornography a different section of this law to cited contents?

No, pornography is in the same category as hard violence, as far as
the JuSchG (youth protection law) is concerned. The definition I have
been referring to was from another law, the StGB (penal code).

> How confident are you that these definitions transfer?

I read again on this issue. Now I'm not that confident anymore: Looks
like the legal science literature agrees that the defintion should be
transferred from the penal code to the youth protection law, but the
courts seem to disagree. If in doubt, I would follow the courts,
because they are relevant in practice, but I don't know their position
in detail yet. I will look it up...

> The person not in Germany would be exporting to Germany and the
> recipient in Germany would be the importer. I can't find this
> in your previous email, so I'm not sure whether you reflected
> this and it's just an English-language slip; or whether this
> law is a problem for non-Germany residents.

I found this to be counter-intuitive too. 

But it seems like (another rationalization) the law is stressing it's
national point of view here: It's not relevant whether you export
something from some other country (carry it from that country over the
border to wherever). For german law, it's only relevant if you import
something into Germany (bring it from wherever into the country).

Returning to the facts: The books agree that "import" applies to the
person not in Germany sending youth-endangering media into Germany
(and *not* to the recipient).

> So, is this more of a problem for debian-cd than debian-mirrors?
> I see this German law appears to have very particular limits on
> what is permissible age verification, as you've mentioned.

There are a number of related problems, regarding advertisement in
Germany, distribution within Germany and mail-order import. Probably
the CD import problem should be mentioned on debian-cd and the problem
for German mirrors on debian-mirror.

> I don't think it surprising that there's no reply before
> this discussion concludes. 

That's possibly true. I think the maintainers first reaction was wrong
(telling me there was no problem). But OTOH he didn't close the bug
yet, so probably he's waiting for our results here, which seems right.
(And I have to admit that my first mails were more of a "this feels
bad" type, not very much backed by research.)

> Many maintainers dislike legal
> uncertainty.  It also looks like the maintainer *can't* fix
> this bug technically other than by requesting removal from the
> archive, which seems a bit of an overreaction and globalises
> one country's daft law. Maybe this is a mirrors bug rather
> than a quake2 bug?

I don't know. As I see it now, it's a problem of quake2-data. And,
depending again on my further research about "advertising", maybe a
problem of the quake2 package description, because it advises people
to install Quake II. 

I don't know much about the technical procedures inside Debian. I have
seen legal problems transferred into bug reports on single packages
("xxx is non-free"). But probably it is a difference whether there is
a copyright problem or other legal trouble.

So if you think this should be a mirroring instruction, and the
problem should be filed as a bug against mirrors, that's fine
with me. Personally, I would like to see a "non-German" repository, or
maybe "non-EU" (see the Finnish position), because it would make the
censorship obvious. But that's just my opinion as a Debian user, and I
guess this is for the developers (or ftp admins) to decide.

In addition, probably there should be a note to the CD vendors,
regarding the export/import problem. Do you think this should be filed
as a bug against "cds" or something like that?

> Mailing them directly means that it is untracked by debian and
> new mirror admins won't know about this problem, among other
> problems. I guess a bug would need opening against mirrors until
> this can be added to mirroring instructions :-/

Ok, sounds reasonable. So we should mail them and file a bug report.

> http://www.chiark.greenend.org.uk/~sgtatham/bugs.html
> and there's probably others which would be helpful, but I didn't find.

Essentially, this web page says that I should describe the problem in
detail -- this is what I did, as far as I could (without legal
research, after just reading the text of the law). I hoped someone
would take over at this point. But probably this wasn't
realistic... And I have to admit that my first mails were rather
vague. I had seen the extensive formulations of the law and was
concerned, and that was where it stopped.

> Could you publish a homepage at your place of study or work,
> and put it in your sig, so new neutrals don't have to ask?
> (You never know, maybe one day it could become a good resource
> for new legal peculiarities of Germany affecting free software
> and information.)

Not very soon. Formally, as a Referendar I am employed by the
Kammergericht (Berlin regional court of appeal), but in fact I am
working for 3-months-terms at different places, so things are not very
stable. Plus, the exams are coming closer, so my time is limited. But
I will set up such a page after my exams.

> It is appreciated, but please let us reach some understanding
> first.  Let's say you had bulldozed us: what could happen next?

Hm. Actually, I'm not trying to bulldoze anybody... I hope I'm making it
rather clear that I'm not sure sometimes, and how I reach my
conclusions etc.

> We don't seem to be blessed with many German lawyers here to give
> such an opinion, so I'd suggest summarising this law, pointing
> to easy reference(s) for an admin to find out more, noting that
> quake2-data may be a problem, describing how a mirror admin can
> block a single package from their mirror and telling them of any
> relevant campaigns against this sort of legal damage for free
> distribution which they may wish to consider (FFII and ffis?).
> Give people here some days to comment, update, then post it on
> bugs.debian.org/313159, then send it out.

Ok, sounds reasonable. But I don't know the technical part. Somebody
else would need to write up how to block a single package. Plus, I
don't know any campaign that actually challenges this problem. The
computer games scene was pretty upset some years ago, but I didn't
hear about this for quite some time now. Maybe I should ask for
information on this when sending that summary, maybe there are some
gamers on this list.

Michael Below