Indeterminate file-sharing cease-and-desist letter unusable?

The Higher Regional Court (OLG) Düsseldorf had to decide in a file-sharing matter regarding an application for legal costs assistance, which the Regional Court (LG) Düsseldorf refused to the Internet user who had been warned by the law firm Rasch.

The law firm Rasch warned a connection holder because he allegedly downloaded 304 audio files from a file-sharing network on the Internet. However, the cease-and-desist law firm did not clearly establish for which of these titles its clients were supposed to have corresponding copyrights. The person warned therefore refused to issue a cease-and-desist declaration, so the warning attorneys filed a suit for injunctive relief and damages.

The consumer warned by the law firm Rasch applied for legal costs assistance in order to finance a legal dispute concerning copyright infringement. The Regional Court refused him this on the grounds that there was no prospect of success in the case. The person warned had this decision reviewed by the Higher Regional Court (OLG) Düsseldorf.

Decision of the Court

The Higher Regional Court (OLG) Düsseldorf decided that the legal costs assistance application had been wrongfully denied by the Regional Court. In particular, there were sufficient prospects of success in defending against the injunctive relief claim.

It was not established that the person warned had committed or was responsible for the copyright infringements alleged against him. This could be disputed by the person warned with lack of knowledge, as he had no insight into the business operations of the rights holders, the investigative service, and the Internet service provider.

The cease-and-desist letter from the plaintiffs did not meet the minimum requirements to be imposed on a cease-and-desist letter. Offering 304 audio files for download did not in itself constitute a copyright infringement, as there are sufficient "free" works on the Internet which one may problemlessly keep available for download.
Furthermore, it is up to each copyright holder whether he exercises his rights in the concrete case or allows the infringer to continue. Third parties cannot assert these rights. Without specifying the titles whose offering was supposed to violate the rights of the clients of the law firm Rasch, the person warned could not ascertain from the cease-and-desist letter what conduct he was to cease in the future.

Such a cease-and-desist letter, which does not reveal the specific infringement and does not even put the most willing debtor in a position to issue an effective cease-and-desist declaration, constitutes a completely unusable legal service.

Conclusion

The cease-and-desist letter in question from the law firm Rasch is, according to the order of the OLG Düsseldorf, therefore "a completely unusable legal service"! We assume that the colleagues will restrict this matter on the merits to the specific infringements. According to the decision of the OLG Düsseldorf, they will presumably not receive a cost reimbursement for their cease-and-desist letter.