File-sharing cease-and-desist letter despite assignment of all usage rights?

Users of illegal file-sharing networks are regularly sent cease-and-desist letters by relatively unknown artists, such as the authors of song lyrics, even though they have mostly sold the rights to the texts to the respective musicians who release the musical work. The Higher Regional Court (OLG) Cologne had to decide whether a copyright owner, despite assigning exclusive usage rights to a third party, could nevertheless request information from the Internet service provider regarding the user of the IP address and subsequently send a cease-and-desist letter to the file-sharer subject to a penalty clause.

The author of a musical work became aware of a copyright infringement on the Internet through illegal file-sharing networks, in which that musical work was downloaded as part of the playlist "German TOP 100 Single Charts". In order to be able to assign the identified IP address to an Internet user, the copyright owner applied to the Regional Court (LG) Cologne for a court order by means of which they intended to obtain information from the relevant Internet service provider. The copyright owner received this information and sent a cease-and-desist letter to the file-sharer, demanding the submission of a declaration to cease and desist subject to a penalty clause. The alleged infringer opposed the disclosure of the information on the grounds that the copyright owner had licensed all their usage rights to a third party and was therefore no longer authorised to request information and to send cease-and-desist letters for corresponding infringements.

Court's decision
The OLG Köln decided by Beschluss vom 08.02.2010 – Az. 6 W 13/10 that the copyright licensee can still assert information rights even if they have exclusively transferred the usage rights to a third party, provided that they have a legitimate interest in legal proceedings. The court affirmed this legitimate interest of the copyright owner in this case, since the profitable exploitation of the musical works by the licensee, in which the copyright owner had a percentage share in this case, was endangered by the placing of the music in illegal file-sharing networks.

Conclusion

The author of a part of a musical work, despite assigning all their usage rights, remains entitled to send cease-and-desist letters for copyright infringements through file-sharing in file-sharing networks. However, in cases where the copyrighted works exchanged on the Internet are older than 6 months, the addressee of the cease-and-desist letter can, according to a decision of the OLG Köln vom 05.10.2010 – Az. 6 W 82/10, successfully lodge an interlocutory appeal against the court order for disclosure of information.