Fareds | Advice on the copyright infringement warning letter from Fareds
Advice on the copyright infringement warning letter from Fareds:
The Hamburg-based law firm Fareds represents many copyright holders from the music industry and sends copyright infringement warning letters in their names. The basis of the warning letters is the alleged illegal downloading and uploading of copyright-protected music.
Media law and copyright specialist, Christian Solmecke, uses his experience of dealing with warning letters from the law firm Fareds to offer you the following information and advice on how to react.
Copyright holders Fareds represents:
- MIG Film GmbH, Urtstr. 2 a, 52353 Düren
- Alex Komlew, Buschingtr. 3, 81667 München und Christian Königseder, Elsterstr. 29, 81223 Eichenau
- EUROPACORP Société Anonyme, vertreten durch den Vorstand Christophe Lambert, 137 Rue du Faubourg St. Honoré, 75008 Paris, France
- Geto Gold Musikverlag GbR, Blücherstr. 22, 10961 Berlin
- Celebrate Recordings GmbH, Am Birkenwäldchen 2, 09366 Stollberg
- Los Banditos Films GmbH, Schwabstraße 33, 70197 Stuttgart, vertr. d.d. GF Timo Johannes Mayer, ebenda
- Distribution Workshop Ltd., Unit 215, 2/F InnoCentre, 72 Tat Chee Road, Kowloon Tong, Kowloon, 00, Hong Kong
- Herr Niels Eiterer, 86165 Augsburg
- Frau Sandra Candie Bjurman, 21152 Malmö, Sweden
- Herr Stefan Örn, 11352 Stockholm, Sweden
- Fort Knox Entertainment GmbH, Krausnickstr. 22, 10115 Berlin
- Lightning Entertainment Group, Inc., v.d.d. Vizepräsidenten Robert Beaumont, 301 Arizona Avenue, Suite 400, Santa Monica, CA 90401, USA
- Boll AG, Wormserstraße 173, 55130 Mainz, vertr. d.d. Vorstand Dr. Uwe Boll, ebenda
- Offshore Music Ltd., vertreten durch den CEO Herrn Torsten Stenzel, Monks Hill Road, St. Pauls, English Harbour, 0001 Antigua & Barbuda
- Schneider & de Teba, Költerhoff GbR, 12099 Berlin
- Nu Image Inc., 6423 Wilshire Boulevard, Los Angeles, California 90048, United States of America
- Herrn Matthias Mania, 10245 Berlin
- Elephant Music GmbH
- Martin Fliegenschmidt, 50668 Köln
- Claudio Pagonis, 50674 Köln
- Matthias Haß, 21218 Seevetal
- Munix Music GbR, vertr. d.d. Gesellschafter, Gaberlsberger Str. 59, 80333 München
What is the law firm Fareds demanding from you?
By sending you a copyright infringement warning letter, the law firm Fareds is seeking the submission of a declaration to cease and desist. The declaration must be enforceable by a penalty in the case of a breach. Furthermore, instead of a compensatory amount and legal costs, Fareds demands a payment in settlement, which depending on the number of works named in the warning letter, can be €850 or more.
The content of the warning letter:
On the first page of the warning letter the copyright holder (artist, music label, film studio) being represented is named. Subsequently you are then required:
“1. …having not acquired our client’s express consent, to cease making copyright-protected music belonging to our client available via the internet or from exploiting the copyright-protected music in any other way; and
…to ensure the enforceability of this declaration, to undertake to pay a contractual penalty of €5,001 in the event of any future violation; and
2. …to pay the costs resulting from this matter.”
On page two the law firm informs you that they represent the copyright holder named on page one and it has engaged a company to monitor file-sharing websites for copyright infringements and capture IP-address detail. Having obtained an order from the district court, the law firm were able to access your personal address.
On page three Fareds gives the date and time when the alleged infringement took place, i.e. when the music file was exchanged via the IP-address which has been assigned to you. This IP-address is variable and cannot be double checked.
Pages 4 – 6:
On pages four to six Fareds details the claims the claims and rights its clients has against you. These include: a claim to cease and desist, a claim for compensation and an entitlement to information.
Cease and desist claim:
The first claim Fared’s client has, is for the submission of a declaration to cease and desist. The following appears:
“Our client is entitled under paragraph 97 I of the German Copyright Law to require you to cease and desist. This right subsists irrespective of the party at fault. Subsequently you are liable, even when you did not want to infringement on the rights of our client.” (Page 5)
To make it easy, the law firm Fareds even attaches a pre-printed, unilaterally-drafted copy of a declaration to cease and desist for you to sign and submit.
Under paragraph 2 the law firm Fareds draws your attention to the alleged claims to compensation its client has against you. The law firms mentions lawyer’s costs of up to €1,359.80 net plus an additional €20 for disbursements.
Fareds also makes it clear, that they believe the cap on lawyer’s costs of €100 (as provided for in paragraph 97 II UrhG) does not apply in the current case.
The law firm also notes that they have a claim against the perpetrator of the infringement for compensation for damages.
Fareds goes on to make an offer of settlement:
“We therefore give you the opportunity to avoid the dangers connected with the infringement of our client’s rights by signing and submitting a declaration to cease and desist, subject to a contractual penalty, and to make a one-off payment of…
…in order settle out client’s claims against you.”
How should I react to such a warning letter?
Do not sign or submit the pre-printed declaration to cease and desist that you have received from Fareds, as the following disadvantages could result:
- You would acknowledge the obligation to pay compensation
- You would acknowledge the obligation to pay the other side’s legal costs
- 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
- You would be accepting the amount set as a contractual penalty, which is often too high
On the other hand, you should not bury your head in the sand and fail to react.
The obligation to submit a declaration to cease and desist should be fulfilled. In this way, you can avoid costly injunction proceedings.
It is highly advisable to submit a modified declaration to cease and desist which satisfies the other side’s claim. The modified declaration to cease and desist should be so concisely formulated that it contains only the essential elements needed to satisfy the claim. Our specialist lawyers with years of experience in file-sharing cases will gladly draw up and submit a modified declaration to cease and desist for you.
With years of experience, Wilde, Beuger & Solmecke is a law firm specialised in file-sharing cases. We would be happy to advise you in a free initial consultation – contact our hotline on +49 (0) 221 – 400 67 555.