Numerous people continue to receive completely unexpected warnings from lawyers about file sharing / copyright infringement on the Internet. Now, even warning letters are being issued because of an alleged copyright infringement by "streaming" films.
We have been advising and representing clients who have received warnings for copyright infringements on the internet since the beginning of the warning activities of the various "warning law firms". However, our lawyers have the theoretical knowledge and years of practical experience. Due to this knowledge and experience, we are also able to provide our clients with the best possible legal advice.
In the cease-and-desist letters, the persons being warned are accused of having illegally downloaded works (e.g. music titles, films, computer programs) via their internet connection on an internet file-sharing platform and of having unlawfully offered them for download to third parties. In the case of a "streaming warning", the person being warned is accused of having watched a film/work and thereby having illegally reproduced it.
Often, even people who do not know about "file sharing", internet file sharing networks and/or streaming portals, do not use them and are therefore not aware of any "guilt", as they have not committed the acts complained of themselves, receive cease and desist letters. Our law firm is frequently contacted by parents and employers who have no knowledge of the alleged file sharing activities of their family members or employees and are now confronted with a copyright warning. This in turn is due to the fact that the warning lawyers and their clients can only ever identify the persons who are the owners of the respective internet connection through which the alleged copyright infringement is said to have occurred. For this reason, the owners of the connections always receive the copyright warnings, regardless of whether they themselves have committed a copyright infringement or not.
Do I have to hire a lawyer if I receive a warning?
If you have received a warning notice, you should immediately contact a specialised lawyer who has the necessary experience and knowledge in the field of copyright and IT law. It is absolutely necessary to react to the warning within the deadlines set in the warning.
This is due in particular to the following reasons:
1) It is still frequently "advised" in relevant internet forums not to react to a warning notice for file sharing / because of a copyright infringement on the internet.
This procedure can only be strongly discouraged!
Instead, you should mandatorily instruct a lawyer to represent your legal interests within the deadlines set in the warning notice so that he or she can take the appropriate steps for you in due time. Otherwise you run the risk of the warning lawyers enforcing their claims in court and incurring immense legal costs of several thousand euros. However, these threatening costs can almost always be avoided if you engage a specialised lawyer in good time.
Is every warning justified and correct?
2 Often, the warning parties are already impressed by the sheer volume of a warning notice issued. As the warning letters also contain numerous judgements which are intended to give the impression that the person being warned is clearly obliged to make the required declarations and payments, it happens time and again that clients rashly make declarations (in particular cease-and-desist declarations) and payments without being legally obliged to do so, as they erroneously assume that they have to make all the required declarations and payments.
Of course, the lawyers issuing the warnings also aim, through the scope of their warnings, the citation of numerous judgements and the naming of horrendous claims for damages and lawyers' fees, to ensure that the persons being warned immediately make the required declarations and payments without any legal examination. Furthermore, the warning lawyers try to achieve the submission of unchecked declarations and payments by allegedly demanding only a "relatively" small lump sum in the warning letters, which is allegedly far below the sum that the person being warned actually has to pay.
However, you should not unreservedly believe all of this talk within the warning letters without a prior legal review by a specialised lawyer!
It is understandable that the lawyers present the facts in the warning letters as if all asserted claims were clearly given and all asserted declarations and payments were to be made. It is also understandable that within the warning letters only the case law is cited that confirms and supports the legal opinion of the lawyers issuing the warning letters.
This, in turn, does not mean that the facts contained in the warning are correct, have been correctly determined and that the cited case law is applicable to the facts asserted! It also does not mean that the cited case law is upheld by all courts and does not mean that the required declarations and payment do not have to be made due to a different case law. Furthermore, there are also considerable doubts as to whether the copyright infringement complained of can actually always be proven so "conclusively" and "unequivocally".
Do I (always) have to issue a cease and desist letter?
3. to avoid legal and financial disadvantages, you should therefore not submit a declaration of discontinuance with a penalty clause and also not make any payments without a prior legal review by a specialised lawyer.
This again has the following reasons:
a) Often the pre-formulated cease-and-desist declarations sent with the warning are far too broad and contain a contractual penalty that is too high. Therefore, it is usually necessary to at least prepare and send an amended/modified cease-and-desist declaration with a penalty clause. However, whether a cease-and-desist declaration with a penalty clause must and/or should be submitted at all must be legally examined in advance. In some cases, there are considerable doubts as to whether the facts presented in the cease-and-desist letter have been established correctly and whether the claims asserted exist at all.
b) A cease-and-desist declaration is valid for 30 years. You should therefore be aware that the declaration you have made will continue to have effect for a very long time and that a contractual penalty of possibly several thousand euros can be demanded from you for each breach of the cease-and-desist declaration.
You should therefore only issue a cease-and-desist declaration if:
- You understand why you should make a cease and desist declaration,
- You understand what the legal consequences of a cease-and-desist declaration are for you,
- you know what the content of the cease-and-desist declaration must be in your specific case,
- you know what you must refrain from doing in the future,
- you know how to behave in the future to avoid a penalty.
Due to the legal and technical complexity and difficulties of copyright disputes, it is therefore strongly advisable to seek legal advice and representation immediately in the event of a copyright warning.
Is the owner of the internet connection liable?
4 In the warning letters, it is almost always claimed that the connection owner would always be liable under civil law for injunctive relief and damages, regardless of whether he himself or a third party has committed a copyright infringement via his internet connection. The warning letters then state that a connection owner is at least always liable as a "Stoerer" (interferer), even if he himself has not committed a copyright infringement.
However, this is incorrect.
A connection owner who has not committed a copyright infringement himself/herself cannot initially be held liable as a perpetrator under criminal law. A connection owner who has not committed any file sharing himself can at most be held liable under civil law as an interferer. A "Stoerer" (interferer) is a person who, without being a perpetrator or participant, in any way willingly and causally contributes to the infringement of the protected right. Since, in the opinion of the Federal Court of Justice, the "Stoererhaftung" (Breach of Duty of Care) may not be unduly extended to third parties who have not themselves committed the unlawful act, the liability of the "Stoerer" (Breach of Duty of Care) requires, according to case law, the violation of obligations of verification. According to case law, the extent of this obligation is determined by whether and to what extent the party claimed to be the "Stoerer" (interferer) can be reasonably expected to carry out an inspection under the circumstances of the individual case.
A connection owner can therefore only be held liable as a "Stoerer" (interferer) if he has violated his duty to check. However, which inspection obligations must be assumed by a connection owner and when these are fulfilled is judged very differently by the individual courts depending on the facts of the case. Therefore, the facts underlying each warning notice must be examined individually and it must then be determined on the basis of these facts whether a "Stoererhaftung" (Breach of Duty of Care) of the connection owner is possible. This examination, in turn, can only be carried out by a specialised lawyer.
What is a disturber? Is a disturber liable? What is the disturber liable for?
In the warning letters and the prepared cease-and-desist declarations, the person being warned is usually required to acknowledge and pay the claimed amount of money in addition to the cease-and-desist claim. This sum of money usually consists of the claimed lawyer's fees and additional damages. However, the Federal Court of Justice (Bundesgerichtshof) has ruled that the owner of a connection who has been held liable as a "Stoerer" (interferer) does not have to pay any further damages. The Federal Court of Justice has ruled that in the case of copyright infringement, a "Stoerer" (interferer) can only be sued for injunctive relief and for reimbursement of the lawyer's fees incurred as a result of the warning notice. It is therefore not possible to demand payment of further damages from him that go beyond the lawyer's fees. This in turn means that at least part of the claimed sums of money cannot be demanded from the outset from a connection owner who did not commit the copyright infringement himself.
The lawyer's fees and claims for damages are mostly not justified, or not justified in the amount claimed.
Whether the legal fees claimed in the warning are justified and/or the lump sum settlement amount offered in most cases is appropriate must also be checked in the course of legal advice. The same applies to the asserted further claims for damages. However, it is often found that both the allegedly payable lawyer's fees and the allegedly payable further claims for damages do not exist or at least do not exist in the amount claimed. The use of an advising lawyer is therefore worthwhile for this reason alone.
Criminal proceedings threaten in addition to the warning
(6) In addition to civil liability, including liability for injunctive relief and damages, there is also criminal liability for anyone who offers copyrighted data via file-sharing systems without the necessary permission of the right holder. Criminal liability results from Section 106 UrhG. According to this, anyone who reproduces, distributes or publicly reproduces a work or an adaptation or transformation of a work without the consent of the rightholder in cases other than those permitted by law is liable to a custodial sentence not exceeding three years or to a monetary penalty. If you are accused of having made numerous works accessible on the Internet, you could also be liable to prosecution under Section 108a UrhG. According to this, the offender is punished with imprisonment for up to five years or a fine if he acted commercially in the cases of §§ 106 to 108 UrhG. If you are accused of offering content with pornographic content on the internet, you could also be liable to prosecution under section 184 d of the Criminal Code (distribution of pornographic performances through broadcasting, media or teleservices). The range of punishment for the offence is a prison sentence of up to one year or a fine.
In order to avoid criminal consequences, you should therefore instruct a specialised lawyer to represent your legal interests. If you were to submit the prepared cease-and-desist declaration in the prepared form, you would have acknowledged the facts presented by the warning lawyers as correct and, by submitting the cease-and-desist declaration, you would thus also have confessed to a criminal offence pursuant to Section 106 UrhG. If you had not committed a copyright infringement yourself, you would have confessed to a criminal offence without having committed it at all.
Conclusion:
If you have received a cease-and-desist letter because of file sharing/copyright infringement, you should always react to the cease-and-desist letter and immediately seek advice from a specialised lawyer. He or she can check the content of the warning notice with you, discuss the appropriate steps with you and then also initiate them. Under no circumstances should you, however, as is still propagated in some forums, not react at all to a warning notice or submit unchecked cease-and-desist declarations.
We are happy to provide you with immediate and comprehensive advice.
Our activities include both the defence against the out-of-court warning and, if necessary, the defence in court proceedings. In our firm, advice is provided exclusively by specialised lawyers. Our specialist lawyers have been advising and representing individuals, companies and public authorities in the field of copyright law for several years throughout Germany and therefore already have experience from several thousand warning proceedings.
Advice from our specialist lawyers can be given by telephone on 0202-450036 or in person at our offices in Wuppertal and Solingen. Before commissioning our firm, you will of course also be informed of the total costs of our work in a binding manner.
In particular, we have received file sharing cease-and-desist letters from the following law firms:
- Kornmeier & Partner Attorneys at Law
- Nümann + Lang Attorneys at Law
- Rasch Attorneys at Law
- Sasse & Partner
- Schutt, Waetke Attorneys at Law
- Waldorf Rechtsanwälte, now Waldorf Frommer Rechtsanwälte
- Negele, Zimmel, Greuter and Beller Law Firm
- SKW Schwarz Attorneys at Law
- Lihl Law Office
- Law Firm C-S-R
- Baumgarten Brandt Attorneys at Law
- Graf von Westphalen" law firm
- Auffenberg Attorneys at Law
- U & C Attorneys at Law (formerly KUW Attorneys at Law)
- Lawyers Bindhardt, Fiedler, Rixen, Zerbe
- Lawyers Bindhardt and Lenz
- From Kenne & Partner Attorneys at Law
- .rka Reichelt Klute Aßmann Attorneys at Law
- Schulenberg & Schenk Attorneys at Law
- Schalast & Partner Lawyers and Notaries
- Denecke, von Haxthausen & Partner
- Baek law office
- Lawyers Kern & Cherkeh
- Law Firm CSC - Cramer von Clausbruch, Steinmeier Cramer
- Lawyers Dr von Gerkan and Burow
- Hoffmann Attorneys at Law
- Lawyer Marko Schiek
- FAREDS Rechtsanwaltsgesellschaft mbH, Attorney at Law Dr. Fleischer
- Attorney at Law Dr Ulrich Bente
- RA Meier Law Office
- Kruse Law Firm
- Zimmermann & Decker Attorneys at Law
- Winterstein Attorneys at Law
- Schroeder Law Firm, Attorney at Law Lutz Schroeder
- Wagoner Wallenfels
- Philipp Marquort, lawyer
- APW Lawyers & Notary
- Law firm Selig & Christ Partnerschaft von Rechtsanwälten
- Scheuermann, Westerhoff, Strittmatter Attorneys at Law
- Lawyer Daniel Sebastian
- H & P Prof. Dr. Holzhauser & Partner Attorneys at Law Switzerland Ltd.
- WeSaveYourCopyrights Rechtsanwaltsgesellschaft mbH, Attorney at Law Christian Weber
- BRODAUF Attorneys at Law
- PAULUS Attorneys at Law
- Lawyer Rainer Munderloh
- CGM Rechtsanwaltsgesellschaft mbH
- Nimrod Attorneys at Law
- Lawyer Tobias Seling
- Carsten Goethe Law Office
- Lawyer Marcus Meier
- Carvus Law Attorneys at Law
- KS Sarwari Law Firm, Attorney at Law Yussof Sarwari
However, as more and more law firms are issuing warning letters, the above list is only a snapshot.
GoldbergUllrich Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
