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Thursday, 28 October 2010

Has illegal filesharing just become "a little cheaper" in Germany?

An interesting decision on damages in cases of copyright infringing file-sharing has been handed down by the Regional Court Hamburg (LG Hamburg, decision of 8 October 2010, case reference 308 O 710/09).

In a press release the Hamburg court informs that it decided that a 16 year old file-sharer was only liable to pay damages of 15 Euros for each title he had illegally shared online. In this case the overall damages amounted to 30 Euros for two songs he had offered illegally on an Internet file sharing site. The claimant, who owned the distribution rights for these songs, had asked for damages of 300 Euros per title, which appears to be a fairly common amount usually awarded for such damages.

When deciding the amount of damages to be awarded - which had to be based on what a respective licence for these songs would have cost ("fiktiver Lizenzvertrag") - the court took into consideration that titles in question were songs of well-known artists (at least well known in Germany: the song "Engel" by Rammstein and the song "Dreh‘ dich nicht um“ by German singer song writer Westernhagen. However, the court also took into consideration that the songs were already several years old when they were offered online. As such, the court assumed that there was little demand for the songs. Furthermore, the court held that it was important that the songs had only been offered for a short time and the court hence assumed that each song had only been downloaded about one hundred times.

The Hamburg court further held that the father of the 16 year old was not liable for copyright infringement. While he had allowed his son to use the Internet access and was to regarded a "disturber" ("Störer") and had a duty of care ("Überwachungspflicht") concerning the Internet access that was used to commit the copyright infringing acts under the German principle of disturber liability. However, the father had not himself committed copyright infringement and as such was not liable for damages.

This Kat will certainly not go as far as to say that copyright infringement in German has just become a little bit cheaper, since every case very much will turn on its specific facts, but this decision by the Hamburg court nonetheless gives a good indication that the German courts appear to adopt a rather pragmatic real life approach when assessing the level of damages to be awarded.

The court's press release can be accessed here.

6 comments:

Anonymous said...

15 Euro - sounds like a good deal to me.

Jan-Peter Ewert said...

Allow me to disagree. This decision changes nothing. The money in the warning letter industry is not in the damages based on the respective licenses, but in the compensation of the attorneys' fees.
As you may know, German law provides for automatic compensation for your necessary legal costs from your opponent. This is the only reason this scheme works. Yes, the son had to pay but 30 Euros in damages, but the father had to compensate the opposing attorney for his work in an amount so far undisclosed.
German "law firms" representing record labels send out tens of thousands of automated identical warning letters based on IP addresses they automatically harvest in filesharing systems. There is no reason whatsoever that these form letters be signed by a lawyer except for one - only if it is signed by a lawyer does it warrant automatic compensation of fees, in the best case only a couple hundred Euros but usually more.
Don't get me wrong - I'm all for protecting IP. But claiming that it is necessary to have these thousands of identical letters signed by a lawyer instead of some underpaid intern to manufacture compensation claims is a travesty only topped by the fact that there are courts who follow this tune.
And what exactly is the charge that would warrant this punishment? A father trusting his son not to do something illegal behind his back, or a son downloading two songs with a price tag of €0.99 each if bought on iTunes? (Please don't try to start "but he UPloaded", we all do know how filesharing systems work, don't we?)

Anonymous said...

Jan-Peter, you are German, aren't you?

Jan-Peter Ewert said...

Anonymous, not only am I German but a German IP attorney.
I might add that I would actually lose some business if the warning letter industry were to collapse.

Anonymous said...

Jan-Peter, she was asking a rethorical question.... :-) Did you recently also ask about Amerikat's spelling of President Obama?

Tevildo said...

I'm surprised that the age of the tracks was a material consideration. The Hendrix Estate and whoever holds the rights to Mr Presley's material these days might have cause to be concerned...

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