According to a judgement of the Cologne Higher Regional Court (OLG Köln) of 23 December 2009 (Ref. 6 U 101/09), a woman from Upper Bavaria has to pay 2,380.00 euros in warning costs plus interest to 4 leading German producers of sound recordings.
In August 2005, a total of 964 music titles were illegally offered for download as MP3 files from the woman's Internet connection, as later investigations revealed, including many older titles such as those by the rock group "The Who". The various copyrights and rights of use to these titles belong to the music companies EMI, Sony, Universal and Warner Deutschland. After the IP address of the internet connection was assigned to the Bavarian woman due to the investigations of the public prosecutor's office, the music companies sent her a warning letter through her lawyer, whereupon she undertook to refrain from further copyright infringements. The music companies then sued her for payment of the lawyer's fees for the warning. The owner of the connection denied that she herself had offered music on the Internet. In addition to her, her husband and her sons, who were 10 and 13 years old at the time, had access to the computer. The 6th Civil Senate of the Cologne Higher Regional Court, which is specifically responsible for copyright issues, has now awarded the plaintiff music companies a claim for compensation for their warning costs due to the unauthorised download offer.
The Senate left open to what extent the owner of an internet connection must monitor that other persons do not commit copyright infringements via his connection. In the specific case, the woman had in any case not submitted anything about who, according to her knowledge, could have committed the infringement. However, according to procedural principles, she would have been obliged to do so. For example, it had not been far-fetched that her husband had used the connection, since older titles had often been offered for download. Furthermore, it remained unclear which of the children could have used the connection. The owner of the connection had also not explained whether sufficient technical safeguards had been installed on her computer, such as a firewall that could have prevented a download, or the installation of user accounts with limited rights. The mother of the two boys had also not been able to make it clear during the trial that she had fulfilled her parental control duties. The mere prohibition not to download music from the internet and to participate in internet file-sharing networks was not sufficient to prevent infringements by the children if this was not monitored in practice and the children were given free rein. Therefore, the owner of the connection was ultimately to be considered responsible and liable for the copyright infringements.
In calculating the lawyer's warning costs, which are based on the value of the matter in question, the Senate emphasised the music companies' high interest in avoiding further copyright infringements from the specific connection. The appeal was not admitted. The judgement is not yet final.
Source: Press release of the Cologne Higher Regional Court
The decision of the Higher Regional Court of Cologne shows once again that it is urgently necessary to be represented by a specialised lawyer in the event of receiving a file sharing warning. In the context of out-of-court activities, but also in the context of court proceedings, the further course of action must be discussed with the client in detail and insistently. In particular, the underlying facts must be thoroughly analysed with the client so that an economically sensible solution can be achieved for the client. The case of the Higher Regional Court of Cologne also shows that a cost-intensive lawsuit can be lost solely due to a lack of presentation.
In the present legal dispute, the data in dispute were determined by the competent public prosecutor's office. In the meantime, however, very few data are obtained by the competent public prosecutor's office. In most cases, the data used in the context of warning letters are determined by various private companies. It is often doubtful whether this data is correct and accurate. It is also known that there are often false investigations.
In order to avoid cost-intensive legal disputes, it is strongly recommended that you seek the help of a specialised lawyer when you receive a file sharing warning. Due to the extensive and, in part, very different case law of individual courts as well as the numerous behavioural patterns and procedures after receiving a warning notice, we can only strongly advise against making a declaration in the event of receiving a file-sharing warning notice without legal assistance.
If you have any further questions, please do not hesitate to contact us by telephone.
Goldberg Attorneys at Law
Attorney at Law Michael Ulrich, L.L.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: Info@goldberg.de
Phone: 0202/450036
