No procedural costs in case of unreasonable file-sharing warning

According to a judgment of the Higher Regional Court of Cologne (OLG Köln) dated 20.05.2011, an audiobook publisher that makes excessively broad demands in a warning letter to a private individual and simultaneously incorrectly indicates that a limitation of the requested declaration would result in its ineffectiveness has no claim to reimbursement of costs.

The publisher and rights holder of a German audiobook recording of the book "The Lost Symbol" had accused the respondent, a private individual, of offering a copy of the book for download via file-sharing through the use of his W-LAN access. Attached to the attorney's warning letter was a pre-drafted non-infringement declaration, with which the respondent was required not only to sign that he would no longer make the disputed work publicly available (which would have been sufficient) or permit it to be made publicly available in the future, but furthermore also other works of the publisher in general.

At the bottom of the declaration, with corresponding references to case law, it had been indicated that "restrictions recommended incorrectly in internet forums" of the aforesaid declaration could render the entire non-infringement declaration ineffective.

After the respondent had initially not responded, the publisher obtained a preliminary injunction, following which the respondent then issued a non-infringement declaration limited to the specific work in question and declared the proceedings settled. After the respondent was to bear the procedural costs according to the cost decision of the Regional Court of Cologne (LG Köln), he lodged an appeal with the Higher Regional Court (OLG).

The court's decision

The Higher Regional Court of Cologne (OLG Köln) (judgment dated 20.05.2011 – Az. 6 W 30/11) first clarified that, in the absence of a risk of repetition, a claim to cease and desist with regard to works other than the disputed work did not exist. Although as between entrepreneurs a cease-and-desist claim that goes beyond the statutory entitlement is harmless, this is not the case with respect to consumers. Here it applies all the more that a warning letter must show the debtor a way to satisfy the creditor without resorting to the courts.

In the present case, it was also a consumer. For even if – therein lies the actual significance of the decision – in file-sharing cases an infringement exists "on a commercial scale" (which according to § 101 UrhG is a prerequisite for the information claim for the purpose of identifying the responsible party, as well as for the question of the possibility of limiting damages to € 100.00), a private individual who acts "like but not as" a commercial provider by offering a third party's work to the public is a consumer.

If in such a case demands are made of a consumer with regard to the non-infringement declaration that substantially exceed what is legally necessary, it can no longer be said that the applicant had shown the respondent the way that was necessary to avoid legal proceedings.

The respondent would therefore not have given cause for an action by failing to issue the declaration.

Conclusion

Since according to the judgment of the Higher Regional Court (OLG) the overwhelming majority of warning letters in the file-sharing sector are attributed to consumers, the judgment is of considerable significance. The warning letter itself should also no longer occur in such a case in the true or presumed interest of the recipient, since the interest of the recipient in the warning letter is the prevention of legal proceedings, but an unreasonable demand leads to the result that the warning letter is not suitable for this purpose. Whether the demands in the letter or in the non-infringement declaration in an individual case reach the degree of impermissibility as in the present case must of course be clarified in each individual case, preferably with the assistance of a lawyer specializing in this area. In any case, the Higher Regional Court of Cologne (OLG Köln) has provided recipients of warning letters who are private individuals with a very strong argument to defend themselves against excesses of the warning letter practice.