Regional Court of Cologne, 24 November 2010, Ref.: 28 O 202/10
Time and again, Internet users are being warned about "file sharing" by law firms that specialise in prosecuting copyright infringements. File sharing is the direct transfer of files between Internet users using a peer-to-peer network. Each computer registered in this network makes its resources available to other computers. This means that each participant can search for music files (e.g. in mp3 format) or other files on the other participants' hard drives and download them. In return, this participant makes their files available for download. If these files are protected by copyright, both downloading and making them available are subject to copyright law.
The legal basis for the reimbursement of warning costs is the legal institution of agency without authority or Section 12 (1) sentence 1 UWG. The Federal Court of Justice justifies this by stating that the warning serves to eliminate the unlawful disturbance caused by the person being warned, which the latter is obliged to do. By avoiding an otherwise imminent costly legal dispute by issuing the warning, the person issuing the warning is therefore acting in the objective interest and at least the presumed will of the infringer.
Another case of compensation for damages due to file sharing has now been decided by the Regional Court of Cologne in the above-mentioned judgement. In particular, the court addressed the issue of "Stoererhaftung" in the family circle, as the defendant's son had, as is so often the case, carried out the file sharing.
FactsThe plaintiffs (producers of sound recordings) are the owners of numerous neighbouring rights and copyrights to various pieces of music which are illegally offered for download in so-called online file-sharing networks as MP3 files. The defendant is a police officer and a member of the police information and communication group for online research and internet piracy. He is the owner of an Internet account which is also used by his wife and their adult son.
On behalf of the plaintiffs, a third-party company established that audio files had been made available for download from a specific IP address using file-sharing software. The recordings "Leuchtturm" and "99 Luftballons" by Nena were downloaded and listened to for evidence purposes. The plaintiffs then filed criminal charges against persons unknown and informed the public prosecutor's office of the IP address of the internet user who had made the alleged downloads possible. The public prosecutor's office determined that the aforementioned IP address was assigned to the defendant at the aforementioned time. Following a warning letter from the plaintiffs' legal representatives, the defendant issued a cease-and-desist declaration with a penalty clause without recognising any legal obligation. An amicable agreement on the costs of the proceedings and the plaintiffs' claims for damages was not reached. The defendant refused to pay the requested legal fees.
Cologne Regional Court: The Cologne Regional Court agreed with the plaintiffs' view that the warning costs should be reimbursed via the legal institution of management without mandate. According to established case law in copyright law, the person who can demand the removal of a disturbance or omission from the disturber is generally entitled to reimbursement of his expenses pursuant to §§ 683 sentence 1, 670 BGB via the institute of management without mandate, insofar as he assists in the removal of the disturbance and acts in the interest of and in accordance with the real or presumed will of the disturber (BGH, NJW 1970, 243; 2002, 1494). The warning letter addressed to the defendant was still justified, as there had been an infringement of rights for which the defendant was in any case liable as the disturber. It was to be assumed that it was not an unknown third party who had made the music publicly accessible via the Internet, but the son of the defendant's wife. In the context of a claim for injunctive relief, anyone who - without being a perpetrator or participant - has in any way intentionally and adequately contributed to the unlawful infringement is liable as a disturber in analogous application of Section 1004 BGB (see judgement of the Higher Regional Court of Cologne of 23 December 2009, case no. 6 U 101/09, with further references). If the defendant makes Internet access available to third parties, including and in particular members of his household, within his household and thereby enables them to participate in the music sharing platform, then this wilful behaviour is adequately causal for the infringement of property rights.
Source: Cologne Regional Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.
One Response