Is an operator of an internet café liable for an injunction?

Internet café operators frequently face the problem of suddenly receiving a cease-and-desist letter accusing them of copyright infringement and demanding they sign a binding declaration of discontinuance. However, if the copyright infringement was actually committed by a customer of the internet café, the question arises whether the operator of the internet café is then liable for an injunction in this regard. The Regional Court (LG) Hamburg has made a decision on this matter.

The operator of an internet café was sent a cease-and-desist letter by the company N. and was required to sign a binding declaration of discontinuance. This was justified by the infringement of copyright through the unlawful public making available of a copyright-protected film in file-sharing systems on the internet. In fact, the IP address under which the film file was made publicly available was demonstrably assigned to the internet café operator's connection at the relevant time. However, the copyright infringement objected to in the cease-and-desist letter was typically not committed by him personally, but by one of his customers. The company N. had previously acquired the rights of use in the film from the film producer A. V. Productions Inc.

The recipient of the cease-and-desist letter refused to sign a binding declaration of discontinuance, as he felt he had been wrongly targeted and pointed out that as the operator of an internet café he had no control over what his customers do on the internet.

The company N. subsequently applied by way of an interim order to prohibit the operator of the internet café from making the said film available on a computer for retrieval by other participants in file-sharing systems and thereby making it publicly available.

Court's decision
In its order of 25.11.2010 – Az. 310 O 433/10 the Regional Court (LG) Hamburg granted the application and justified its decision as follows:

The operator of the internet café is responsible for this legal infringement, as the connection holder is at least liable under the principles of disturber liability (Störerhaftung) in a manner independent of fault for an injunction. This applies even taking into account the circumstance that the legal infringement was committed by a customer of the internet café. The provision of internet access to third parties carries with it the not inconsiderable possibility that third parties would commit copyright infringements via this access. The holder of the internet connection is capable of and obliged to take measures to prevent such legal infringements. In particular, the ports required for file-sharing could be blocked. It is not evident that the operator of the internet café has taken any measures suitable in this sense. The fact alone that the legal infringement in question occurred speaks against this.

Conclusion

Operators of internet cafés are liable as disturbers (Störer) for an injunction if customers commit copyright infringements in the context of file-sharing systems and no possible and reasonable measures, such as blocking the ports, have been taken.
As an operator of an internet café, care should therefore always be taken to implement appropriate measures and thereby avoid any risk of receiving a cease-and-desist letter. If a cease-and-desist letter has already been received, it is recommended to seek comprehensive legal advice regarding the further possible courses of action.