Negative declaratory action against file-sharing cease-and-desist letter permissible

Whoever leans too far out of the window can also fall out – as the Regional Court (LG) Stuttgart demonstrated in its judgment of 11.07.2007 (17 O 243/07) shows. Despite several attempts by the alleged infringer (copyright infringement through file-sharing) to convince the sender of the cease-and-desist letter of his (later also proven) innocence, the latter did not abandon his demands (declaration of abstention, damages, reimbursement of costs). The chosen means was a counter-attack in the form of a negative declaratory action by the person served with the file-sharing cease-and-desist letter, which he won decisively.

The subject matter of the declaratory action was the judicial determination that the claims asserted in the file-sharing cease-and-desist letter do not exist. This form of action is appropriate whenever claims are asserted whose non-existence is already established. It is then incumbent upon the defendant to prove that his assertions are correct and produce the desired legal consequences.

In the decided case, however, the plaintiff served with the cease-and-desist letter had already set out beforehand and proven by means of protocols that he does not come into consideration as the perpetrator of the alleged copyright infringement. There was simply a transposition of digits in the determination of the IP address, which completely exonerated the person served with the cease-and-desist letter. The defendant cease-and-desist sender apparently only examined the case more closely during the proceedings and ultimately could not refute this. The result was the now official judicial determination that the person served with the cease-and-desist letter did not commit a copyright infringement and therefore no claims whatsoever exist for an injunction, damages and reimbursement of attorney fees. Moreover, the defendant rights-holder must bear all the costs of the proceedings.