Filesharing cease-and-desist letters only for new songs?

In filesharing cases, the connection holder is regularly sent a cease-and-desist letter. The identification of the connection holder regularly takes place via a judicial order, by means of which the rights holder obtains information from the respective internet service provider regarding the assignment of an IP address to a connection holder. The connection holder in question is usually unaware of the judicial order and the information provided. The Higher Regional Court (OLG) Cologne has now had to clarify whether a connection holder, upon receipt of the cease-and-desist letter, can still take action against the provider's disclosure of information with the result that the rights holder may not use the information obtained as evidence. The OLG ruled on this basis on the age of the downloaded music piece.

The rights holder of a music album released over two years ago discovered, through an anti-piracy company commissioned by it, an unlawful offering of its music pieces on an internet file-sharing network. The rights holder applied to the competent court for an order obligating the internet service provider – in this case Deutsche Telekom – to provide information about the connection holder by means of the assignment of an IP address. On the basis of this information, the connection holder was subsequently sent a cease-and-desist letter and requested to submit a cessation declaration subject to a penalty clause. The connection holder is now defending herself with an appeal against the judicially ordered information disclosure order. According to her view, it should not have been issued because the downloading of a music album older than two years does not constitute the commercial extent required for the judicial order.

Court's Decision
In its Beschluss vom 05.10.2010- Az. 6 W 82/10, the OLG Cologne decided in favour of the connection holder and allowed the appeal.

The connection holder has a right to appeal against a judicial order typically obtained by the copyright holder in filesharing cases. This right of appeal is generally not time-limited and may therefore be lodged even after disclosure has taken place and a cease-and-desist letter has been sent. However, the appeal may only be based on the grounds that the sender of the cease-and-desist letter is not the rights holder, the infringement was not obvious, or no commercial extent was reached.

The Higher Regional Court assumes that, in the case of a music album that has been on the market for longer than 6 months, commercial extent is not automatically presumed. Rather, in such cases the rights holder must present special circumstances in order to prove commercial extent. If the rights holder cannot do so, an appeal against the disclosure of information will be successful. In such case, the information disclosed can generally no longer be used as evidence in the court proceedings.

However, the Higher Regional Court allowed further appeal to the Federal Court of Justice (BGH), so that the final word in this legal matter has not yet been spoken.

Conclusion

In cases where the copyrighted works exchanged on the internet are older than 6 months, the sender of the cease-and-desist letter is not the rights holder, or the infringement was not obvious, the recipient of the cease-and-desist letter can in future successfully lodge a further appeal against the information disclosure order issued by the court. Should this disclosure order be revoked in the appeal proceedings, the rights holder will be left without evidence and must terminate the proceedings against the connection holder.

This decision could have considerable impact on current cease-and-desist letter practices. Should this ruling establish a precedent, in future filesharing will probably only be pursued through cease-and-desist letters for current music albums and films. In any case, the court responsible for the information disclosure order will have to examine more closely whether commercial extent is present in the requested cases.