Limitation of legal costs in file-sharing warnings to € 100.00

According to the correct view of the Local Court (AG) Frankfurt a.M. (judgment of 01.02.2010 – 30 C 2353/09), the attorney's fees for a justified warning in connection with file-sharing must be reimbursed by the party warned. However, in many cases these are limited to € 100.00. The reason for this is an amendment to copyright law that was necessary due to the mass warnings against peer-to-peer network users.

The legislature recognized some time ago and limited the obligation to reimburse attorney's fees (warning costs) incopyright infringementsin § 97a Abs. 2 UrhG to € 100.00. The prerequisite is that

• a straightforward case exists,
• the infringement is minor,
• there is no commercial conduct and
• the party warned has not previously attracted attention due to similar incidents.

For a long time, even among legal professionals, it was disputed whether the provision was applicable to file-sharing warnings. In particular, the rights holders and their attorneys have, since the provision was created, taken the position that the capping of warning costs fails already because neither a straightforward case exists nor is the infringement minor.

The Local Court (AG) Frankfurt/Main sees this differently in its decision. This decision is based on awarningconcerning the distribution of a music title via a peer-to-peer network (file-sharing). According to the court's view, the research effort required to identify the connection holder does not justify the assumption of a complex case. Furthermore, the rights holders could draw on extensive and established case law and did not need to engage in legal development. Moreover, the file-sharing warnings would consist for the most part of standard text modules and be produced as form letters. This also supports the assumption of a straightforward case.

It should be noted, however, that the infringement is only minor if it is a first offense and only a single work or album is affected. Otherwise, it becomes difficult to cap the warning costs at € 100.00.

Insofar as the foregoing prerequisites are met, it isin any case advisable for the party warnedto defend itself against higher cost claims. While there is as yet no settled case law on this subject (applicability of § 97a UrhG to file-sharing warnings), it can be assumed that other courts will judge accordingly. The Federal Court of Justice (BGH) has also in the meantimeindicatedan application of the provision.