No compensation for damages in the case of unjustified file sharing warnings

The Hamburg Regional Court had to decide on a case in which the defendants had wrongly issued a warning to the plaintiff. Originally, the defendants accused the plaintiff of copyright infringement on the internet (file sharing). The defendants accused the plaintiff of having committed a copyright infringement under a certain IP address. The defendants had received the IP address in dispute from the public prosecutor's office at the time. Later, it turned out that the public prosecutor's office had mixed up IP addresses in the course of the preliminary investigation. The preliminary proceedings against the plaintiff were then discontinued.

Since it turned out that the plaintiff had not committed any copyright infringement on the Internet, the plaintiff now demanded compensation for the lawyer's fees she had incurred as a result of the unjustified claim (warning letter) in the proceedings before the Hamburg District Court.

The Hamburg Local Court awarded the plaintiff the requested lawyer's fees (damages) in its judgement of 11 December 2007, file no. 316 C 127/07. However, in its judgement of 21 November 2008, file no. 310 S 1/08, the Hamburg Regional Court rejected the plaintiff's claim for reimbursement and overturned the judgement of the Hamburg Local Court.

The Regional Court of Hamburg held that a wrongfully warned person could only claim the legal fees incurred if the person issuing the warning was at fault with regard to the unjustified warning. In the present case, such fault did not exist in the opinion of the Regional Court of Hamburg, as the defendants relied on the information provided by the public prosecutor's office and were entitled to rely on it. The Regional Court expressly stated that the defendants were under no obligation to check the content of the information provided by the public prosecutor's office. The Regional Court also took the view that even the statement of a person who had been warned that he had not committed a copyright infringement did not oblige a person who had sent a warning notice to check again whether the IP address addressed could actually be attributed to the person who had been warned.

The decision of the Regional Court of Hamburg has far-reaching consequences. Often there are considerable doubts as to whether the persons who were actually warned really participated in P2P file sharing. In addition, doubts are just as frequently raised as to whether the IP addresses determined were actually accurate and correct. If it later turns out that a person who has been warned was wrongly warned, the wrongly warned person is not even entitled to reimbursement of the legal fees incurred, according to the Regional Court of Hamburg. In view of the relatively high legal fees incurred in "file sharing cases", this decision of the Regional Court of Hamburg is thus a very unpleasant decision for those who have been wrongly warned. It remains to be seen whether other regional courts will follow the legal opinion of the Hamburg Regional Court.

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Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)