EUR 400,000 Dispute Value for File Sharing of 3,749 Music Titles?

The Regional Court (LG) Cologne had to decide whether and to what extent a German sound recording producer was entitled to claim reimbursement of cease-and-desist letter costs and damages for copyright infringements in a peer-to-peer network against the warned connection provider, even though the latter had not themselves downloaded the musical pieces or offered them for download.

A total of 3,749 music titles were made available online via the peer-to-peer software Gnutella through the internet access of a private household. Several sound recording producers issued cease-and-desist letters regarding this infringement and requested the connection provider to cease the activity. Although the connection provider issued a binding cease-and-desist undertaking, they refused to pay the legal fees, which had been calculated on the basis of a dispute value of EUR 400,000. The warned party disputed having offered the disputed songs via Gnutella. They claimed they were neither themselves an infringer nor a disruption to the alleged rights infringement. Furthermore, they disputed the copyright ownership of the warning parties, which they claimed had not sufficiently proven.

Court Decision
In its Decision of 24.11.2010 – Az. 28 O 202/10 the Regional Court (LG) Cologne ruled that a demonstration of the complete chain of copyright rights would not be required if ownership of the copyright is disputed only in general terms. The court affirmed liability of the connection provider as a disturber, since although the connection provider had not themselves placed the music titles on the internet, this had been done by a family member living in their household. The connection provider had not demonstrated that they had fulfilled their obligation to secure and monitor the internet connection.

Since the number of music pieces made available via the Gnutella peer-to-peer network was 3,749, the court set the dispute value for each of the four claimants at EUR 100,000, resulting in a total dispute value of EUR 400,000.

Conclusion

A general dispute of copyright usage rights in file-sharing cases is insufficient for courts dealing with such matters to exonerate connection providers of the allegation of file-sharing, just as a general assertion that they have fulfilled their obligation to secure and monitor their internet connection. The warned party must set out both in detail in order to avoid liability.

The dispute value of EUR 100,000 set here for each of the four sound recording producers is attributable to the severe infringement caused by the provision of the 3,749 musical works.