Warning letters concern a formal demand to stop doing a particular activity. The idea behind such warning letters is to settle disputes directly and cheaply, without resorting to taking claims to court. The copyright infringement warning letter is an out-of-court settlement offer.
In 2014 , I downloaded many films on BitTorrent. I received several copyright warning letters from law firms asking compensation up to 1000€ each and a declaration to cease and desist.
Worse, all the warning letters must be replied within 7 days. I contacted some lawyers specialised in internet copyright. I learned a lot about file sharing infringements. If you don’t have much time to read through this, go directly to the last paragraph Summary
What is illegal ?
The music and film industry pursue file sharers. As a general rule of thumb, download is allowed. You are not allowed to upload copyright material publicly.
If the exchange of music to friends via e-mail , chat or cloud storage ( even though this is an upload) takes place within the private sphere, it is then legal.
How do law firms track file sharers ?
By default, when you use a peer to peer such as torrent, your IP address is visible. Look below at the screen capture . The IP addresses are displayed and their respective countries.
utorrent peers list . IP addresses are listed
Copyright holders ( Hollywood , music labels … ) purse the file sharers of their content. To expand territorial scope ( e.g. Hollywood is US based) , copyright holders use law firms based in Germany. These law firms target only IP addresses only in Germany and the time ( important for dynamic IP address ).
The name and address of the person accessing the internet cannot be directly obtained from this information.
The internet service provider ( ISP ) is not permitted to simply pass on personal details; but they must do so if presented with a civil court ruling. ( Copyright Act , Urheberrechtsgesetz, § 101 UrhG )
The ISP is obliged by court order to send the information directly to the copyright holder. In doing so, internet providers may demand payment for providing copyright holders the information concerning IP addresses. (According to paragraph 113, sub paragraphs 2, sentences 2 and 3 of the Telecommunications Law)
Once the name and addresses are obtained, warning letters are sent. The requests from rights holders comprise thousands IP-addresses at a time. The whole process is highly automated.
However the IP Address is not sufficient to prove its owner was the one who committed the crime. It could the children or a neighbor using the wi-fi.
The defense (you or your lawyer) focus on proving you are not the perpetrator but someone else did it.
It could be someone else who was using your internet access via Wi-Fi. That’s why all wifi must be secured.
The German Federal Supreme Court decided that every person who owns an internet connection is under an obligation to ensure that it is secured.
If the wireless connection was not secured, but the owner can prove that he/she didn’t commit the copyright infringement (e.g. because they were not at home at the time the download took place), then the owner will not necessarily be liable as the perpetrator, but will nevertheless be strictly liable for causing a nuisance.
Cease and Desist letter
Not only does the warning letter ask for a compensation ( the price always inflated ) , but it asks you to sign and return a cease and desist letter (Abmahnung) within the next 7 days.
The initial cease and desist letter is crafted to take advantage of you because :
- You acknowledge to pay compensation and the opposition side’s legal cost
- You were the one who committed the copyright infringement.
- You would be bound by the declaration for 30 years and future changes in the law by Parliament or through the courts would have no effect.
Instead you should submit a modified declaration to cease and desist, which satisfies the other side’s claim. You acknowledge to pay a lower compensation, you don’t know who did it and you will never be involved in copyright infringements.
There are plenty of free “cease and desist” samples online. But the modified declaration can be rejected by the opposition side if the formulation terms are incorrect.
A specialist lawyer in file-sharing case is a great help for the average joe.
How to choose a lawyer
I contacted some lawyers specialised in internet copyright. Each case costs a nominal fee. Most of them have a flat rate price no matter the number of warning letters received. Meaning all the copyright infringements committed before the last warning letter was sent will be ignored but the ones after are not included in the flat rate contract.
But the most important criterion for me was the location of the lawyer. If the case is escalated to Court, it’s better to have your lawyer in the same city.
If you choose one, you will have to mandate the law firm and give the power of attorney ( Vollmacht in German ).
Remember a warning letter is an out-of-court settlement offer. The copyright holders didn’t bring the case to court. A letter is cheap, the court is expensive.
After receiving a copyright warning letter, there are several options :
- Be the stupid guy . Sign the cease and desist letter and accept their unfavourable conditions.
- Be the nice guy . Return a modified cease and desist letter favorable for you ( lower compensation and you were not the perpetrator) . But never sign the original one.
- Be bold. Reject the warning letter and reject the cease and desist letter. State no compensation will be paid. The copyright holders will escalate with another out-of-court letter. Maybe the case will reach the court only if the opposition thinks the cost of the Court is worth.
- Be ignorant. Ignore the warning letter as if you never saw it. There is little chance that the copyright holders will ignore your ignorance. The consequences will be worsened.
A lawyer is not required but can be very helpful for your defence.
Copyright holders ( via their law firms ) bring customers to defence law firms. The compensation requested by the warning letters is always inflated. Copyright holders have minimum costs to recover because Internet providers can demand payment for providing the names behind IP addresses.
Warning letters based on alleged copyright infringements have become big business for the German content-industry, anti-piracy firms and their affiliated lawyers. And the people who are benefitting the most are the defence lawyers whose demand is only increased by customers who receive warning letters.
Because the whole process of 1 tracking IP addresses/ 2 requesting the name holder of those IP addresses / 3 sending warning letters is highly automated, it has created a nuisance for hundreds of thousands if not millions of honest internet users in Germany. The current implementation of warning letters violates EU law .
A major difference with France’s HADOPI , the French government sends some waning letters ( rarely with fine ) while in Germany, private law firms carry on the warning letters.
With growing losses due to piracy , the corporations are suing the content consumers instead of re-inventing the content distribution.
To avoid future warning letters, I suggest to read anonymity on P2P network
The following lawyers frequently send out copyright warnings:
Auffenberg, Petzhold, Witte; Baumgarten & Brandt; Bindhart , Fiedler, Zerbe; CSR; Daniel Sebastian; Denecke Haxthausen & Partner; Fareds; Johannes Rübenach; Kornmeier & Patner; Lihl; Lutz Schroeder; Marcus Meier; Marko Schiek; Negele; Nümann und Lang; Paulus; Philipp Marquort; Rainer Munderloh; Rasch; Reichelt, Klute, Aßmann; Sasse und Patner; Schalast & Patner; Scheuermann,Westerhoff, Strittmatter; Schutt, Waetke; SKW Schwarz; U+C; Vahrenwald & Kretschmer; Waldorf Frommer; WeSaveYourCopyrights; Winterstein; Zimmermann & Decker.