EUR 2.00 Licence Damages in File-Sharing Litigation?

The amount of licence damages and the value in dispute to be determined in file-sharing litigation has, since the abolition of the forum actoris, been assessed very differently by courts throughout Germany. The Local Court (AG) Stuttgart-Bad Cannstatt assumed a very low level of damages in the context of such file-sharing litigation.

The facts of this case are quickly recounted and correspond to thousands of cases which have been tried before German courts at present and in recent years.

The holder of the exclusive rights of use and exploitation of a pornographic film with the telling title 'Ab Heute Juckt das Fötzchen', which she distributes at a retail price of EUR 14.99, brought an action against a connection subscriber for infringement of his copyright.

In doing so, the usual legal issues of these cases were initially discussed. The connection subscriber succeeded in proving that besides himself, other users had also used his internet connection at the alleged time of infringement, so that the presumption of infringement against the connection subscriber could be rebutted. The connection subscriber was able to credibly demonstrate that he himself had not committed the infringement and thereby fulfilled the secondary burden of proof imposed on a connection subscriber.

Court Decision

The Local Court (AG) Stuttgart-Bad Cannstatt dismissed the rights holder's action by judgment of 13.08.2015 – Az. 8 C 1023/15.

After the presumption of infringement against the connection subscriber had been rebutted by him and the secondary burden of proof to be fulfilled by the connection subscriber had been satisfied, the action of the holder of the rights of use and exploitation of the pornographic film 'Ab Heute Juckt das Fötzchen' was to be dismissed.

Despite the dismissive judgment, the Local Court (AG) did not refrain from providing detailed expositions on the calculation of damages pursuant to the licence analogy, whereby the extent of the copyright infringement was first to be determined.

In calculating the licence damages, the Local Court (AG) arrived, by a method described in considerable detail, at the result that the rights holder of the pornographic film could claim damages pursuant to the licence analogy of EUR 2.04 and the value in dispute for a warning notice regarding such a pornographic film was EUR 15.00!

Conclusion

It may be doubted whether many courts will adopt the calculation method derived by the Local Court (AG) Stuttgart-Bad Cannstatt, which is certainly very interesting. The number of pending file-sharing litigation cases would in any event be drastically reduced thereby.