Warning notice for file-sharing – what should be done?

Like many internet users, you have probably landed on this page because you have been served with a warning notice. In this notice, you are accused of having publicly offered music, films, or other copyright-protected files via a file-sharing network. The notice typically demands the execution of a pre-formulated cease-and-desist declaration, payment of damages, and reimbursement of legal costs – usually seasoned with a generous helping of wild threats and plenty of paperwork. Now the right course of action is required. An overview of the necessary steps to be taken can be found in the following guide.

The warning notice is issued by lawyers on behalf of the rights holders (performers, publishers, etc.). It serves to pursue copyright infringement and is intended to give you the opportunity to settle the matter out of court. The connection holder is always held liable, who under the TKG is subject to extensive liability – regardless of whether he himself committed the infringement and regardless of whether he was even aware of the activities (keywords: minors and co-residents).

The accusation typically relates to the public offering of music and film works via peer-to-peer networks / file-sharing networks (= file-sharing) via eMule, BearShare, BitTorrent, Azureus and many others.

Many affected parties contact us only after days of research and many sleepless nights. If you have not researched for hours – save yourself the time. Many opinions can be found on the internet, but above all half-truths and lay knowledge. What is certain is the following:

• The warning notices are generally not unlawful or abusive – in the courts' view, a multitude of legal violations also justifies a multitude of warning notices.
• It is irrelevant whether the warned connection holder was aware of the legal violations. He is liable even if these were committed by persons with whom he shares his connection.
• Almost every legal violation gives rise to a cease-and-desist claim against the connection holder, which can only be eliminated by the execution of a penalty-backed cease-and-desist declaration – in this respect, the corresponding demand is justified.
• The same applies to reimbursement of the warning notice costs (= legal costs): These are associated with the cease-and-desist claim and are likewise independent of the connection holder's knowledge.
• HOWEVER: Claims for damages require culpable conduct. This is extremely questionable in the case of ignorance of the legal violations.

The right conduct in an emergency

The foregoing provides an overview of the general situation. However, there are countless arguments against liability, which can form the basis of a successful dispute with the companies issuing the warning notices and the rejection of the payment claims made. This cannot, however, be stated generally, but rather requires consideration of the specific facts of the case.

Taking into account the legal situation and to preserve an optimal legal position, in the event of a warning notice, the following should generally be observed or arranged:

• Be sure to observe the deadlines set. These can if necessary be extended with legal assistance (before the deadline expires!).
• As a precaution, a cease-and-desist declaration should be executed – if this is done without acknowledgement of a legal obligation, but nonetheless legally binding, this entails no admission of guilt. However, you will thereby achieve a significant reduction in the subject matter value and thus of the cost risk.
• You should NEVER sign the pre-formulated cease-and-desist declaration, but instead execute a so-called modified cease-and-desist declaration – for example, the obligation to pay damages or legal costs is not a prerequisite for the validity of the declaration.
• Do not negotiate with the opposing party unless you intend to pay the amounts demanded.

Conclusion

The foregoing rules apply to many, but not all cases. The foregoing statements cannot therefore replace individual legal advice. Should you consider obtaining such advice, please feel free to contact us without obligation (telephone / e-mail, etc.) to clarify the modalities and costs. In file-sharing cases, we typically act out of court for a reasonable fixed fee.