In the case of file-sharing cease-and-desist letters, it is often not the authors themselves who issue cease-and-desist letters, but alleged other rights holders. In particular, the companies DigiProtect Gesellschaft zum Schutze digitaler Medien mbH, Uptunes GmbH and Styleheads GmbH should be mentioned here.
Within the scope of the warning, it is claimed that the companies issuing the warning are owners of exploitation rights or owners of the exclusive rights of use to the works in dispute, as they financed and/or produced the work in dispute within the scope of their business operations. Whether this is true or not can usually not be verified by the person issuing the warning.
The Düsseldorf District Court now had to decide on a case in which Uptunes GmbH requested that the defendant who had been warned be ordered to pay damages in the amount of € 1,255.98.
However, the court did not consider it proven in the proceedings that Uptunes GmbH was the owner of the exclusive rights of use to the work in dispute. In the court's opinion, Uptunes GmbH had not proven that it held the necessary copyrights and rights of use under copyright law. In the course of the proceedings, Uptunes GmbH only submitted a written agreement written exclusively in English, which was supposed to show that Uptunes GmbH had been granted the exclusive rights of use to the work in dispute. In the opinion of the Düsseldorf District Court, the wording contained in the agreement also did not allow the clear conclusion to be drawn that the transfer of exclusive rights of use had been intended. Insofar as Uptunes GmbH claimed that it had "financed and produced the sound recording in dispute in the course of its business operations" and therefore had the rights of a sound carrier producer under Section 85 UrhG, the court did not consider that the necessary requirements for this had been sufficiently demonstrated. The rightholder within the meaning of Section 85 UrhG is only the person who has rendered the organisational and economic performance in order to record the corresponding material. However, Uptunes GmbH did not present the relevant facts that would allow the conclusion of an organisational and economic performance.
Uptunes GmbH could also not rely on the fact that its right to sue was presumed on the basis of a © mark on the cover of the sound recording. It was recognised that the © mark was in principle an indication of ownership, but this presumption in favour of the owner of exclusive rights of use pursuant to Section 10 III UrhG only applied in proceedings for interim relief or in the assertion of claims for injunctive relief. Since neither was the case in the present case, the action brought by Uptunes GmbH was therefore dismissed.
Source: Judgment of the Düsseldorf District Court dated 14.04.2010, AZ.: 57 C 15741/09
Judgment not yet final. Appeal proceedings are still pending.
Goldberg Attorneys at Law 2010
Michael Ullrich, LL.M. (Information Law)
Lawyer and
Specialist lawyer for information technology law (IT law)
