The Regional Court of Cologne (LG Köln) held in a judgment dated May 13, 2009 – file reference 28 O 889/08 – that a dispute value of €400,000 was appropriate for nearly 1000 music files.
The Regional Court of Cologne further assumed that a 1.3 fee under number 2400 VV RVG was justified for an issued file-sharing warning notice. This, in turn, led the Regional Court of Cologne to order the defendant to pay legal fees of €5832.40 to the plaintiff for the issued warning notice.
Furthermore, the Regional Court of Cologne found that the application of § 97a para. 2 UrhG, which limits warning notice costs to €100 in specific cases, is precluded when 964 audio files are offered for download. In such a case, according to the Regional Court of Cologne, there is no mere insignificant infringement. This legal interpretation is likely to represent the prevailing view in jurisprudence concerning 964 audio files.
Topic: Liability for Interference
The Regional Court further found that, within the scope of injunctive relief claims and by analogous application of § 1004 BGB, anyone who has, in any way, willfully and adequately causally contributed to an unlawful impairment – without being the direct perpetrator or an accomplice themselves – is liable as an interferer for the legal infringement.
However, the liability of the interferer presupposes a breach of inspection duties, the scope of which is determined on a case-by-case basis by whether and to what extent the person claimed as an interferer could reasonably be expected to conduct an inspection under the circumstances. Furthermore, the liability of third-party interferers is limited by considerations of reasonableness, with the nature and extent of the required control measures being determined by the principle of good faith. The obligation to take suitable precautions to prevent legal infringements as far as possible must also be kept within the bounds of what is reasonable and necessary.
If an account holder provides a computer and/or an internet connection to third parties, including and especially members of their household, within their household, and thereby enables these individuals to participate in a “music file-sharing network”, the Regional Court of Cologne considers this conduct to be adequately causal for the legal infringement and thus leads to the account holder's liability.
According to the Regional Court of Cologne, providing internet access to third parties, particularly to underage youths, presents a not improbable possibility that such legal infringements will be committed by them. In the opinion of the Regional Court of Cologne, this risk therefore triggers inspection and action duties for the person enabling internet access, in order to prevent the possibility of such legal infringements.
In the opinion of the Regional Court of Cologne, it is also not sufficient for an account holder merely to prohibit minors from downloading music from the internet using file-sharing software. Rather, according to the Regional Court of Cologne, an account holder must take further measures to prevent the legal infringement. They are obliged to provide other users of their internet connection with their own user account with restricted rights. Furthermore, according to the Regional Court of Cologne, the installation of a “firewall” that prevents the download of data from file-sharing servers is possible and reasonable for the account holder.
In summary, it must therefore be noted that the Regional Court of Cologne has interpreted the liability of an account holder inappropriately broadly. The Regional Court of Cologne holds the view that the mere ownership of an internet connection and the mere provision of this connection to third parties trigger general inspection and monitoring duties for the account holder. However, this view cannot be supported, as it unduly extends the account holder's liability. Other Regional Courts and Higher Regional Courts therefore differ significantly in their jurisprudence from that of the Regional Court of Cologne. It should be noted, however, that a plaintiff can “choose” before which court to file their lawsuit due to the so-called “flying venue”.
Should you therefore receive a file-sharing warning notice or a warning notice due to a copyright infringement, we advise you to contact a specialized lawyer. They will help you avoid unnecessary costs and initiate the necessary and appropriate steps on your behalf.
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: Info@goldberg.de
