Thursday, 4 February 2016

Illegal Downloading and File-sharing - action to take if contacted by a German law firm

If you have received a letter from a German law firm specialising in claims against unlawful downloading, or the file sharing of music or films and you are not sure what to do, we have some simple advice on how to approach the issue. Whilst most people have at some point or other downloaded music or films from an Internet website, very few net surfers seem to be aware that downloading without payment is unlawful. In simple terms it is considered to be theft.
Legally it is known as a breach of German copyright law ("Urheberrechtsgesetz"), which is both a criminal and a civil offence in Germany. In recent years copyright owners have increasingly engaged law firms to try tracking down offenders and make them pay hefty sums in compensation for their unlawful downloading. The practice of downloading is also known as file sharing , because the software needed to perform this action makes the file you are downloading available to others as you are doing it. Following a number of court decisions, Internet service providers now hand over to the copyright owners the names and addresses of the IP address of those involved with the unlawful downloading or file sharing. These owners engage law firms to demand compensation from the holders of Internet accounts. These law firms generally demand 2 things from the IP owner on behalf of their clients: * The signing of a so-called "cease and desist declaration" ("Unterlassungserklärung") stating that they will never download this music or film again and * A compensation payment and legal fees for the breach of copyright of somewhere between a few hundred and well over one thousand Euros. What can you do? If you receive one of those letters you need to find out first of all if it is likely that someone in your house (or outside it) had access to your internet router and if there is a chance that the film or music was actually downloaded. If so, then you would be well advised to sign a ' c ease-and-desist declaration' , but not necessarily the one provided by the law firm, since it sometimes states that you will never download anything illegally out of the repertoire of the company concerned. In that case we suggest signing an amended version of the declaration (which can be prepared by Army Legal Assistance or your lawyer) that merely concerns the piece of music or the film concerned. Whatever you sign for is valid for 30 years and any future breach entitles the company to very hefty compensation payments indeed. Secure Your Router If you think it is unlikely that your Internet was used for unlawful downloading, because, for example, you were away at the time, you are unlikely to be liable to pay. However, you could still be liable to an extent if you did not secure your router to an up-to-date standard (currently WPA2), e.g. a personalized 16-digit password with capital and small letters as well as numbers or signs in it. So if you relied on the original factory password setting on your router, and someone hacked it and downloaded something illegally, you can still be sued for a breach of your duty of care ("Störerhaftung"). So those of you who have not changed the password for your router, either make sure you do or check that the password on the router is individual to that router only! Child Users If you are the owner of the IP address but you did not download anything unlawfully, but you have children below eighteen years of age (minors) who have possibly unlawfully downloaded or shared something, you can refer to a German Federal Court of Justice ("BGH") decision according to which parents are not liable for compensation if they have informed their minors about the unlawfulness of downloading and file sharing (BGH - I ZR 74/12 dated 15 Nov 2012). The owner of the IP address may have to sign a cease-and-desist declaration, however. According to the latest BGH decisions in June 2015 parents will have to prove that they informed their children that file sharing is unlawful, so make sure you keep a record of when you informed your children and told them that file sharing is unlawful. In these latest decisions the BGH also agreed that a compensation payment of 200€ per music title downloaded with file sharing software is appropriate (without legal fees). This could soon add up to really big claims by the copyright owners, so make sure you delete any file sharing software from your PCs, note books, smart phones etc. Advice We recommend that you do not to ring the law firm. These firms are trained in getting people to admit that they did what is alleged, so it is best to stick to writing if you need to communicate with them. It is also advisable not to react immediately, even though there will be deadlines in the letter, since these firms sometimes get their paperwork wrong and do not always follow up the tens of thousands of letters they sent out. There are also firms that act fraudulently and accuse IP owner of "file-sharing" who were not even at home at the time. So you need to treat these letters with caution, but should not just ignore them. Where can you get help? Army Legal Assistance (ALA) offers advice and assistance in such cases; contact ALA at Catterick Barracks, Bielefeld, BFPO 39, Mil Tel 94881 3191/3196, Civ Tel 0049 (0) 521 9254 3196 . You can, of course, also seek help from a German lawyer (specialists can be found on the Internet ); before you seek advice, please ask for the fees (as a general rule these are related to the value of the claim).