Modified Cease and Desist Declaration in File-Sharing Warning Letter

One of the most common search terms in connection with file-sharing warning letters is "modified cease and desist declaration". This corresponds to a barely manageable multitude of websites that deal with this topic and make proposals, whereby the content is sometimes questionable. The numerous proposals and templates should in no way be adopted without examination.

With the warning letter regarding an infringement of copyright through the provision of protected musical or film works in a peer-to-peer network ("file-sharing") there is always a demand for the submission of a cease and desist declaration, which is generally pre-formulated and far too broad in scope. In addition to the obligation to refrain from further infringements, one often also finds the obligation to pay damages, attorney's fees and to provide comprehensive information.

"Modified cease and desist declaration" means nothing more and nothing less than the reduction of the wording of the declaration to what is absolutely necessary. This necessarily includes the obligation to cease and desist, the seriousness of which must be demonstrated by the promise of a contractual penalty in case of breach. Alternatively, the assessment of the contractual penalty may be left to the discretion of the party issuing the warning letter and judicial review may be reserved (so-called "New Hamburg Practice").

Furthermore, there is the option to restrict the cease and desist promise to the contested work or to extend it to all works of the (alleged) rights holder. Since the entitlement of the party issuing the warning letter cannot regularly be verified in the short amount of time available, in my view it is permissible and necessary to make the entitlement a condition of the cease and desist declaration. Finally, it should always be made clear that the declaration is made in earnest, but does not constitute any acknowledgement of liability.

Definitely not a prerequisite for the effectiveness of the cease and desist declaration to eliminate the risk of repetition and thus the claim for cessation is the obligation to provide information or payment of damages and attorney's fees / warning letter costs – regardless of whether corresponding claims exist or not.

From a legal perspective, it is necessary to warn against the uncritical adoption of templates circulating on the internet or the drafting of one's own modified cease and desist declaration without appropriate legal knowledge. In extreme cases, this can lead to the ineffectiveness of the cease and desist declaration and result in court proceedings which, due to the high amount in dispute (from €10,000), is associated with very high costs in the four-figure range. For example, a lost cease and desist action with an amount in dispute of €10,000 including warning letter costs easily costs €3,000.

The above statements are of a general nature and cannot replace legal advice specific to the individual case. The costs involved are not as high as some believe and are worthwhile in any case, since expensive mistakes can easily be avoided in this way. Simply ask us without obligation about the options and costs.