Is a cease-and-desist letter for illegal file-sharing exchanges permissible only for current films?

In file-sharing cases, the connection subscriber is regularly sent a cease-and-desist letter. The senders of such letters uncover these copyright infringements by means of a court order, by virtue of which the rights holder obtains information from the respective Internet service provider regarding the assignment of an IP address to a connection subscriber. With regard to music titles, the Higher Regional Court (OLG) Cologne has already decided by order of 05.10.2010 – Az. 6 W 82/10 that the court must not issue any information order after 6 months, since by then a commercial scale of copyright infringement cannot be assumed without further ado. The Cologne judges now had to decide whether this assessment also applies to cinematographic works.

Films entitled "Männersache" and "Isch kandidiere" were downloaded via an illegal file-sharing exchange on the Internet or made available for download by a consumer. Following determination of the IP address and a court-ordered information request, the rights holder identified the connection subscriber through whose Internet access the cinematographic works were downloaded and sent them a cease-and-desist letter with a threat of sanctions. The alleged file-sharer then defended himself with a complaint against the court-ordered information request. In his view, this should not have been issued, since the downloading of the films did not constitute the commercial scale of infringement required for the court order.

Court Decision

In its order of 27.12.2010 – Az. 6 W 155/10 the Higher Regional Court (OLG) Cologne decided that the film "Männersache" was not to be attributed commercial scale, since the upload by the file-sharer in the concrete case was already more than 6 months after the relevant exploitation period. Accordingly, the use of the ascertained traffic data was impermissible.

The legislature deliberately did not allow every copyright infringement to suffice for a right to obtain information, but rather demanded a particularly serious interference with the author's rights. This ensures that the proportionality of the interference with the file-sharer's constitutionally protected rights is maintained.

A particularly serious interference is to be affirmed if the work has a particularly high value or is made publicly accessible within the relevant exploitation period of 6 months following first publication. This was not the case with the cinematographic work "Männersache" here. The film "Isch kandidiere", by contrast, was made publicly accessible in the illegal file-sharing exchange still within the relevant exploitation period, so that the Cologne judges found commercial scale with regard thereto.

Conclusion

In cases where the copyright-protected cinematographic works traded on the Internet are older than 6 months, the recipient of a cease-and-desist letter may in future successfully lodge an appeal against the information request issued by the court. If this can be revoked in the appellate proceedings, the rights holder is left without evidence and must terminate the proceedings against the connection subscriber.