No reimbursement of warning costs in case of "unusable warning".

The Higher Regional Court (OLG) of Düsseldorf (decision of 14 November 2011, file no. I-20 W 132/11) has taken a clear position on the question of the reimbursement of lawyers' fees for file-sharing warnings in the context of an application for legal aid (PKH).

In the case to be decided, a Hamburg law firm had issued a warning to the defendant and demanded, among other things, the warning costs. The defendant applied for legal aid for its defense.
The Düsseldorf Regional Court rejected the defendant's application for legal aid, as it did not consider the defendant's planned legal defense to have any prospect of success. The Senate of the Düsseldorf Higher Regional Court reversed this decision.

According to the OLG, the warning was too unspecific.

The judges objected in particular to the fact that the plaintiff apparently cited 304 downloaded music titles in her statement of claim, most of which the plaintiff did not own any rights to. Rather, only 4 musical works were affected. The decision states in this regard:

"In the present case, neither the right to bring an action nor the infringement have been sufficiently demonstrated. The offering of 304 audio files for downloading does not in itself constitute an infringement of copyright. Not every offer of an audio file for download infringes another's copyright. The files may be in the public domain or have a general licence. For example, it is now not uncommon for performers to post their tracks on the internet for free distribution."

"Without specifying the titles whose offering infringed the rights of the plaintiffs, the defendant could not therefore infer from the warning what conduct it should refrain from in the future. The defendant is not obliged to refrain from offering audio files for download in general, but only to refrain from offering the plaintiffs' tracks. Consequently, the infringement obliging it to cease and desist was not the offering of 304 audio files for downloading, but - assuming the plaintiffs' right to bring an action - the offering of the four music titles of the plaintiffs mentioned in the application.

"This infringement should have been set out in the warning notice, whereby the necessary contract of active legitimacy would at least also have included the allocation of titles to individual plaintiffs."

Warning letter completely useless lawyer service

The active legitimation, i.e. the ownership of the rights to the music titles warned against, of the plaintiffs had not been sufficiently demonstrated in the warning notice.
In the opinion of the court, a warning notice that does not identify the infringement and does not enable even the most willing debtor to issue an effective cease-and-desist declaration is a completely useless legal service that cannot trigger a fee claim at the expense of the employer.

The court expressed with unusual harshness that some of the warnings of the Hamburg law firm were completely useless pleadings, which in this form cannot trigger any costs for the opponent.

This does not mean, however, if you should have received a warning, that generally no more attorney's fees are to be paid on this. Rather, it requires a precise review of the factual situation as to whether the warning you received is also insufficient in the opinion of the OLG Düsseldorf and thus no attorney's fees are to be reimbursed.

Please do not hesitate to contact us if you have any questions. For initial information, you can also use our general information letter on the subject of file sharing.

Goldberg Attorneys at Law 2012
Attorney at Law Oliver Matschuk