BGH bombshell on card sharing: no computer fraud in pay-TV piracy
The Federal Court of Justice corrects previous case law and denies direct financial damage to providers for illegal pay-TV access.
(Image: Bruce Rolff/Shutterstock.com)
In the world of pay-TV piracy, card sharing was long considered a prime example of commercial computer fraud. However, with a recent ruling, the 6th Criminal Senate of the Federal Court of Justice has shaken this legal interpretation (Ref.: 6 StR 557/24). Previously, lower courts almost reflexively assumed millions in financial damage for broadcasters. The BGH now clarifies that the mere interception of encrypted signals does not constitute computer fraud within the meaning of the law. The Senate thus deviates from previous practice and opens up new scope for criminal defense.
The proceedings were based on a case from Bavaria in which the defendants had operated a professional card sharing network for years. In card sharing, the control words necessary for decryption from a legal smartcard are forwarded in real-time to unauthorized users via a server. Customers of the network could thus receive the provider's Sky program without having their own subscription. The Hof Regional Court subsequently convicted the masterminds of commercial computer fraud and calculated damages of over 1.4 million euros – based on lost subscription fees.
The dogmatics of financial damage
The BGH overturned this judgment in a crucial point with its decision published on June 12. The Karlsruhe judges argue that the offense of computer fraud under Section 263a of the German Criminal Code (StGB) strictly requires direct financial damage. Such damage is precisely not present in card sharing, as the unauthorized retrieval of data does not deduct any asset from the provider's assets. The transmission capacities of the pay-TV provider remain completely unaffected by the unauthorized access, it is stated. Nor is the fulfillment of contracts with paying existing customers impaired.
The Senate clearly contradicts the assertion that the mere use of a paid service automatically constitutes damage equal to the regular price. Since no contract was concluded between the provider and the card sharing users, and the provider had to expend no additional resources for the unauthorized decryption, there is no measurable loss of assets. The signals are broadcast anyway, regardless of whether someone decodes them without authorization. The BGH also did not accept the argument of frustrated profit opportunities: Sky could not prove that users of the illegal service would actually have taken out a regular subscription otherwise.
Criminal liability under copyright law remains
However, the ruling does not grant pirates a free pass. In the BGH's view, the behavior remains punishable, albeit under different circumstances. The Senate confirmed the conviction for commercial unauthorized interference with technical protection measures through digital rights management (DRM) according to the Copyright Act. Furthermore, it classified the actions as aiding and abetting the circumvention of services and the espionage of data. The fact that the program content was transmitted via a public telecommunications network is sufficient for this.
An interesting detail concerns the confiscation of proceeds of crime. Although, according to the BGH's view, there is no fraud damage, the state may confiscate the defendants' income amounting to approximately 169,000 euros. The Senate does not focus on the theoretical loss of the broadcaster, but on the actual economic benefit that the perpetrators gained through their illegal actions. Legal experts such as IT lawyer Jens Ferner see a turning point in this change of course. The decision corrects years of practice of "creative" damage calculation.
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