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Created on Tuesday, 24 November 2009 19:39

Last Updated on Friday, 28 December 2012 18:43

Effective Defense against Admonishment and Damage Claims

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This article will give you hints for a first competent reaction and maybe enough weapons for self-defense in clear cases when you receive a letter that is titled as "Abmahnung" - admonishment.

What is this admonishment? Generally, it is a letter stating you that have allegedly broken such and such law and to cease and forebear a certain action - allegedly illegal - from now on. In order to be sure, that you do stick to such cease and forebear you are supposed to submit such declaration combined with the acknowledgment of coming up for the damages. The so called "costs arisen in this matter". Such admonishment does not mention how much these costs actually are. You are supposed to have the feeling that they are very high. However, later in the letter, you will read something like "in order to achieve a consensual end of this matter" an offer to prevent a legal recourse by paying a high sum (e.g. € 1,200) and so settle this unpleasant situation.

Your first reaction will be "Shocking!". Is this an "internet rip off („Internet-Abzocke") or serious lawyers and really damaged persons? Further it cannot be determined if these claims really exist in law and in fact because you just happened to have failed in your classes on copyright law... You will be typically clueless whether financial damages really do exist and how they can be prevented. N.B. do consider that sometimes an admonishment is justified because - negligently or purposely - you infringed somebody else's rights.

You will be encountered with three different claims: cease & forebear, reimbursement of legal costs, and damages. They are being demanded in tongue twisting legalese. These letters are suggestive that the lawyer's claims are justified by copyright and case law. However, the opposite is true! Are you shaking your head how can it be that lawyers make such wrong allegations, then please click this sentence and learn more on how lawyers think / work.

Often admonishments are only standard letters that contain a diversity of general legal thoughts but usually do not show where you have (allegedly) gone wrong. They only write in their mass letters a list of downloaded titles and collected IP addresses. These admonishments do not reflect that the legal situation is not very clear and some courts have totally contrary opinions. The owner of the DSL-line, who might have illegally downloaded files or only giving somebody the technical possibility to illegally download is not automatically liable as a provocateur (so LGLandgericht [City] (District Court for civil and criminal matters) Mannheim January 30, 2007, re 2 O 71/06, OLGOberlandesgericht [City] (Higher Regional Court in civil and criminal matters) Frankfurt a.M., July 01, 2008, re 11 U 52/07). These and other differing court decisions can be held against the legal opinion of the admonishers.

The legal counterargumentation is especially to relate to the real facts of that which has occurred with an exact analysis. Any real claims are only justified with real facts. It is, for example relevant, how many persons can use the internet line or were the WIFI connections secured or not. In how far do the alleged infringements seem likely in relation to other hard facts like actual contents of data, exact file size and degree of download.

When it is the case, that the alleged copyright infringement has really happened then especially the claimed amount of damages. Why should damages amount to a sum of € 1,200 when the song is sold for € 2? However, consider that the offered settlement payment consists of all claims (costs, damages, lawyer's fees) combined. Even when this is the case, there is no room for absolutely over the top demands.

Keep in mind, the new §97a UrhGGesetz über Urheberrecht und verwandte Schutzrechte (Urheberrechtsgesetz), Act on Copyright and related intellectual property rights determines that extrajudicial legal costs and not in business matters are limited to € 100 - when the case is simple. When you are admonished for privately exchanging files, this cost limit will surely applicable. In other words, demanding € 1,200 for evident infringement is against the law. Evident infringement will typically be privately exchanging files - outside of any business. Further damages are alleged but never shown - neither in facts nor in Euros. This implies that no further damages really exist and you are only being intimidated.

What to do? This will surely be your next question. LG2G will give you some hints in the following.

Why an Admonishment?

It might sound funny but admonishing is demanded by statute and actually is of advantage to the debtor. §97a I UrhG explicitly demands "The person whose rights have been infringed must first admonish the infringing person before entering a complaint in court (...)". The admonishment is the last warning before (much more costly) court proceedings will be initiated. So to say, you will get away with a black eye but not a bloody nose.

Cease and Desist?

>An admonishment always contains the demand to give a declaration of cease and desist. This has also been provided by the statute (§97a UrhG): "The person whose rights have been infringed is (...) to give him a chance to settle the dispute by surrendering a declaration of cease and desist combined with reasonable contractual punishment."

The law assumes that you will violate again unless you promise to cease and desist this offence in the future. The declaration of cease and desist aims at clearing this danger of repetition. In as far as the admonishment is justified, which is not necessarily always the case, the person infringing is obligated to submit such declaration.

But all this does not determine what the contents of a declaration of cease and desist is to be. Almost always, you will find a stock declaration. What seems to be a service can easily turn out to be an ingenious attempt to cheat its recipient. Typical threats are hidden acknowledgements of infringements, astronomic contractual damages. Since such declaration will be valid for the next 30 years be careful with what you sign.

>What happens when you, alleged of an offence, refuse to give such declaration of cease and desist? You will have to expect the allegedly infringed person will apply for a temporary injunction - another bloody nose.

Pay for Legal Costs?

The general principle is: When the admonishment is correct, you are obliged to come up for the legal costs. Lawyer fees' depend on the value in dispute and that relates to the economic interest of the cease and desist. File sharing - especially with current movies or music - can really significantly hurt the copyright holder. Nevertheless, it has been seen that some values of dispute have been very sportily set - friendly worded.

A frequent discussion point is in this relation the applicability of §97a II UrhG, which limits the legal costs in easy cases to € 100.

The classical argument of many admonishing law firms is that file sharing is not a simple matter. This is in so far very strange because this is an explicit example why this amendment was passed in parliament.

Another favorite argument for not capping the legal costs is that an infringement in professional scale has been committed. This "argument" purposely conceals that §97a II UrhG only requires an infringement "outside of business intercourse" and not "professional scale (gewerblichen Ausmaß)". The difference of both words is extreme! While "professional scale" is determined by objective criteria, the expression "outside of business intercourse" sees the situation from the prospective of the infringing person if was in private or business spheres. Since downloading music or films is usually only for private use, the cap of € 100 per infringement is applicable.

Hire a Lawyer?

Generally, a superb idea! Especially in cases where copyright infringement is alleged, professional help is urgently recommended. By all means do not pay anything without having it checked. Once you paid and / or signed a prepared declaration without any reservations, you have acknowledged everything alleged without the chance to undue anything.

Need a lawyer? Check the business directory!

Conclusion:

Whenever admonished, never signed unchecked any prepared declaration of the opposing side, do not give any information. React and quickly by hiring a lawyer competent in copyright (Urheberrecht), Internet- or Media (Medienrecht) Law. Speed is of the essence because you will usually only be given short notice in which to react. When you do not react in time, a temporary injunction against you will be filed.

Remark:

The law firm „Rasch Rechtsanwälte in Hamburg represents the big boys in music business like „Universal Music GmbHGesellschaft mit beschränkter Haftung (limited liability company; either private or public) ", „EMI Music Germany GmbH Co. KGKammergericht (Berlin\\'s highest regional court) or Kommanditgesellschaft (private partnership where only one partner has full liability) ", or Sony BMG Entertainment GmbH". The companies have the right to such well known and much loved songs as „No Line on the Horizon"„U2" or „The Fame" from „Lady Gaga". The company „proMedia zum Schutz geistigen Eigentums mbH" discovers these alleged illegal downloads by investigating filesharing systems, torrent portals, and online file sharing networks like „BitTornado" or „Sharepeaza". A suggestive detail in this scenario is that the founder of the law firm „Rasch Rechtsanwälte", Rechtsanwalt Clemens Rasch, is also the managing director of „promedia". Well, if there isn't double interest in this business of admonishing illegal distribution of music. When this law firm alleges you of anything rest assured they will pursue any and all claims to the very bitter end! from