Statute of limitations for file sharing after 10 years?

The limitation of claims arising from copyright infringement through file sharing is repeatedly addressed in file sharing litigation, since the asserted claims have already become time-barred in many cases. Cease-and-desist letter firms repeatedly attempt to extend the regular three-year limitation period to ten years with the argument that the copyright holders' claims for damages are claims arising from unjust enrichment, for which a ten-year limitation period applies.

In a judgment of 27.10.2011 (Az. I ZR 175/10 – Bochumer Weihnachtsmarkt) the Federal Court of Justice (BGH) ruled that GEMA may calculate remuneration for open-air musical performances based on the size of the entire event area, since the calculation is based on the remuneration for performances in closed spaces. The BGH further decided that the saved GEMA fees constitute claims arising from unjust enrichment, which become time-barred only after ten years.

Unsurprisingly, cease-and-desist letter firms now repeatedly argue that file sharing claims for injunctive relief and damages are likewise such claims and that therefore a ten-year limitation period must apply.

Court's decision

In a decision of the Local Court (AG) Kassel of 24.06.2014 – (Az. 410 C 625/14) the court gave the applicability of the above-cited Federal Court of Justice (BGH) judgment to claims for copyright infringement in file sharing cases as clear a rejection as the Local Court (AG) Bielefeld did in its judgment of 6 March 2014 – Az. 42 C 368/13.

A prerequisite for the applicability of the unjust enrichment ten-year limitation period is that the wrongdoer has actually obtained something. This could, as in the case decided by the Federal Court of Justice (BGH), be a saved licence fee, if the exercise of copyright is typically granted only against a licence fee.

In file sharing cases, however, this is precisely not the case. The Local Court (AG) is aware of no provider that grants licences to works in such a way that these could be offered by way of file sharing. An advantage capable of being recovered under the law of unjust enrichment did not as a rule arise for the wrongdoer. For the file sharer's interest in using a peer-to-peer network is only in the use of the specific work for their own purposes, not in any further use or indeed distribution thereof. In this respect the typical file sharing network participant differs from one who, for example, plays music in their place of sale in order thereby to promote the purchasing behaviour of potential customers.

Conclusion

The Local Courts (AG) Kassel and Bielefeld reject a copyright claim for unjust enrichment together with the then applicable ten-year limitation period in file sharing cases. Although these are not appellate court decisions, the judgments of the cited Local Courts (AG) are convincing by virtue of their comprehensible reasoning.

As a result, claims for injunctive relief and damages – subject to any other appellate court case law – continue to become time-barred after three years and cannot be asserted thereafter.