In a judgement of 13.5.2009 - file no. 28 O 889/08 - the Regional Court of Cologne (LG Köln) took the view that an amount in dispute of € 400,000 was appropriate for just under 1000 music files.
The Regional Court of Cologne further assumed that a 1.3 fee according to number 2400 VV RVG was justified for an issued file sharing warning. This in turn resulted in the Cologne Regional Court ordering the defendant to pay the plaintiff legal fees in the amount of €5,832.40 for the issued warning.
Furthermore, the Regional Court of Cologne found that the application of Section 97a (2) UrhG, according to which the warning costs are limited to € 100 in special cases, is excluded if 964 audio files are offered for download. In this case, in the opinion of the Regional Court of Cologne, there is no merely insignificant infringement. This legal opinion is probably also the predominant view in case law for 964 audio files.
Topic: Breach of Duty of Care
Furthermore, the Regional Court held that, within the scope of the injunctive relief, anyone who - without being a perpetrator or participant himself - in any way willingly and adequately causally contributed to the unlawful interference was liable as a "Stoerer" (interferer) for an infringement of rights, applying § 1004 BGB mutatis mutandis.
The liability of the interferer, however, presupposes the violation of duties of inspection, the scope of which is determined in the individual case according to whether and to what extent the person claimed to be the interferer could reasonably be expected to carry out an inspection under the circumstances. Furthermore, the liability of third parties as interferers was limited by considerations of reasonableness, whereby the type and scope of the required control measures would be determined in good faith. The obligation to take suitable precautions to prevent infringement of rights as far as possible must also be kept within the bounds of what is reasonable and necessary.
If a connection owner makes a computer and/or an internet connection available to third parties, including and especially members of his household, within his household and thereby enables these persons to participate in a "music file-sharing exchange", the Regional Court of Cologne already considers this conduct to be conduct that is adequately causal for the infringement and therefore leads to liability of the connection owner.
In the opinion of the Regional Court of Cologne, providing internet access to third parties, especially to underage juveniles, offers the not improbable possibility that such infringements will be committed by them. In the opinion of the Regional Court of Cologne, this risk therefore triggers obligations to examine and act on the part of the party providing internet access in order to prevent the possibility of such infringements.
According to the Regional Court of Cologne, it is also not sufficient if a connection owner merely prohibits minors from downloading music from the Internet using file-sharing software. Rather, according to the Regional Court of Cologne, a connection owner must take further measures to prevent the infringement. He is obliged to grant the other users of his internet connection their own user account with limited rights. In the opinion of the Regional Court of Cologne, it is also possible and reasonable for the connection owner to set up a "firewall" that prevents the download of data from file-sharing servers.
In summary, it should be noted that the Regional Court of Cologne interpreted the liability of a connection owner in an unreasonably broad manner. The Regional Court of Cologne is of the opinion that the mere ownership of an internet connection and the mere provision of this connection to third parties triggers general duties of inspection and monitoring on the part of the connection owner. However, this opinion cannot be followed, as it unreasonably extends the liability of the connection owner. Other regional courts and higher regional courts therefore differ greatly in their case law from the case law of the Regional Court of Cologne. However, it should be noted that a plaintiff can "choose" before which court he brings his action due to the so-called "flying jurisdiction".
Therefore, if you receive a file sharing warning / a warning for copyright infringement, we advise you to contact a specialised lawyer. He or she will help you to avoid unnecessary costs and will take the necessary and appropriate steps for you.
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law