File-sharing action barred by limitation despite dunning order?

Must the warning letter attorney determine the claim of his client precisely already out of court if he wishes to interrupt the three-year limitation period by means of a dunning order, or is it sufficient to individualize the claims sued for in the court proceedings? The Local Court (AG) Nürtingen has now answered this question in the context of a file-sharing action.

The law firm Baumgarten Brandt asserted a claim for damages based on the license analogy in the amount of EUR 400.00 and a claim for reimbursement of legal fees in the amount of EUR 555.60 incurred as a result of the warning letter from 2010, with its action on behalf of Foresight Unlimited LLC against our client on account of the unauthorized offering of the copyright-protected film "Universal Soldier Regeneration" on the Internet by means of a peer-to-peer network (file-sharing).

The filing of the action in the summer of 2014 was preceded by a dunning order in which the warning letter law firm demanded the above amounts. In the warning letter from 2010, the warning letter costs were still stated at over EUR 1,300.00 and damage compensation was not quantified at all. Rather, Baumgarten Brandt demanded a lump sum payment of EUR 1,000.00.

In addition to the facts present in this case, which excluded liability of our client as a tortfeasor or interferor, we also objected on behalf of our client to the limitation of the claims asserted by Foresight Unlimited LLC because these were not sufficiently determined and thus no interruption of the limitation period could occur through the dunning proceedings.

Decision of the Court

By means ofjudgment of 06.02.2015, the Local Court (AG) Nürtingen – Az. 17 C 1378/14 – dismissed the action of Foresight Unlimited LLC due to the limitation of the asserted claims.

The Local Court (AG) initially followed the prevailing view that both claims for reimbursement of warning letter costs and for payment of damage compensation in file-sharing cases are subject to the regular three-year limitation period.

However, the court could not establish an interruption of the limitation period. Although the application for issuance of a dunning order was submitted in time to the court issuing dunning orders and was also served before the end of the limitation period, the asserted claims were not sufficiently individualized, so that an interruption by service of the dunning order could not occur.

In the case decided by the Local Court (AG), the application for a dunning order asserted legal fees for the warning letter and the claim for damages, which, however, were not individually designated and quantified. Rather, the warning letter attorneys demanded out of court the payment of a lump sum, without it being explained from which claims the offered settlement amount was calculated in which parts.

Since the claims did not result sufficiently concretely from the warning letter due to lack of breakdown, and different amounts from those mentioned in the dunning order were demanded there, an interruption of the limitation period could not be achieved even through reference to the warning letter from 2010.

Conclusion

The judgment of AG Nürtingen is not yet final. Should the legal opinion of the Local Court (AG) prevail, however, the requirements for interruption of claims in file-sharing matters will be significantly increased. After all, in the course of file-sharing warning letters, lump sum payments are regularly offered without the warning letter law firm providing an exact quantification of the individual claims. Then in the future, an interruption of the limitation period in these legal matters will be significantly more difficult.