Cease and desist notice for file sharing 25 months after download — permissible?

According to settled case law of the Higher Regional Court of Cologne (OLG Köln), a court may only provide a cease and desist issuer with information concerning the assignment of an IP address to an Internet connection if the copyright infringement has reached a commercial scale. This is to be assumed without further argument if the infringement occurred within the first six months following the initial publication of the work. In the present case, a rights holder sought information concerning the assignment of an IP address in respect of a title whose initial publication was 25 months earlier, in order to obtain corresponding information to serve a cease and desist notice on the file sharer.

The rights holder of the music album 'Walking On A Dream' sought information 25 months after the first publication of the music album from the Regional Court of Cologne (Landgericht Köln) concerning the connection holder of the IP address identified by him, on which the music album had been illegally downloaded. The Regional Court of Cologne (Landgericht Köln) rejected this on account of the lapse of time. Without the assignment of the identified IP address to a connection holder, it was not possible for the rights holder to serve a cease and desist notice on him and to demand corresponding cessation. The rights holder therefore submitted this decision to the Higher Regional Court of Cologne (OLG Köln) for review.

Decision of the Court

In its Decision (Beschluss) dated 05.07.2011 – Az. 6 W 121/11 – the Higher Regional Court of Cologne (OLG Köln) upheld the decision of its Regional Court and continued to refuse the rights holder information concerning the connection holder, as no commercial scale could be assumed after 25 months. Whilst this was in principle possible even after expiry of the six-month period, it required special circumstances, which the rights holder had neither pleaded nor were apparent in the present case.

The commercial scale of the rights infringement could in particular not be justified on the grounds that the title 'We are the People' on the downloaded album 'Walking On A Dream' was ranked at position 39 in the German single charts at the time the cease and desist notice was issued. This did not refute that with regard to the entire album, on which nine further titles no longer featured in the charts had been recorded, the economic exploitation had already been substantially completed. Furthermore, at chart position 39, it could no longer be said that this was a good chart position, which would have justified commercial use of the individual title itself.

Conclusion

In cease and desist notices concerning copyright works whose initial publication was more than six months earlier, a commercial scale can only be assumed under special circumstances. Information already provided, which has led to cease and desist notices being served on connection holders, can pursuant to this decision subsequently be rendered 'harmless' in order to avoid conviction for illegal downloading of copyright-protected works.