12. December 2013, 20:03 Uhr
The first ever warning letters alleging the breach of German copyright law through streaming have been sent by the law firm Urmann und Collegen. The legal basis of the letters is questionable and we would advise internet users not to sign the undertaking to cease and desist or to make any payments.
Thousands of internet users of the streaming platform Redtube have received copyright infringement warning letters. The letters came from the German law firm Urmann und Collegen.
While the so-called “wave of warning letters” is well known in relation to file sharing, this is the first time ever that warning letters have been sent alleging copyright infringements through streaming.
“Initial indications are that around 20,000 – 30,000 people have received warning letters for streaming content on Redtube. Since the first wave of streaming warning letters was sent out last week, we have received over 1500 telephone calls. Many of the recipients have received 4 to 5 letters at once,” German lawyer and partner at WILDE BEUGE SOLMECKE, Christian Solmecke commented.
“Whether streaming is illegal under German copyright law is hotly debated amongst law experts,” Solmecke explained.
“We believe streaming is legal. Redtube users have done nothing illegal and should not give in to the demands in the warning letters,” Solmecke continued.
Streaming warning letters
The legal basis for the streaming warning letters is questionable. In addition, based on past experience, copyright infringement warning letters have often contained exaggerated demands for compensation and lawyers’ fees.
We have put together some information on the current state of play and some tips for you to follow if you have received a streaming warning letter:
A. The content of the streaming warning letters
The streaming warning letters demand €250. This amount is comprised of €149.50 lawyers’ fees, plus €20 standard fee for postage and telecommunication; €15.50 compensation and 65€ expenses for investigating the alleged copyright infringements.
The claim value, from which the lawyers’ fees are calculated, is set at €1080.50.
The deadline given for making the payment is just a few of days.
The following films are the subject of the warning letters:
- Miriam’s Adventures
- Hot Stories
- Amanda’s Secrets
- Dream Trip
- Glamour Show Girls
It is currently unclear how the sum of €15.50 compensation is calculated. Urmann und Collegen may have calculated this amount on the basis of licence fees which would have been due upon purchasing the film. The proper calculation in this case, however, is to levy the individual fee for watching the film, which is a much lower amount.
Also, the investigation charges of €65 cannot be claimed as a standard fee, but must be clearly documented. From our experience in file sharing cases, we know that the investigation costs are often only 2 or 3 euros.
The claim value used in the streaming warning letters is set at €1,000. This is the upper-limit and is usually permitted in cases concerning the illegal distribution of copyright-protected films. For the simple downloading of films, as is the case here, the claim value accepted by the courts is bound to be much lower.
C. The undertaking to cease and desist
If you have received a streaming warning letter, you will find a pre-printed version of an undertaking to cease and desist containing the following:
“1. The respondent undertakes in favour of the complainant to cease and desist in reproducing or allowing the reproduction of the copyright-protected work ‘Miraim’s Adventures’ or parts thereof through streaming on the internet. The respondent further undertakes to pay a reasonable contractual penalty, to be determined by the complainant, for all cases of future infringement of this undertaking. In the case of a dispute, the reasonableness of the contractual penalty shall be assessed by the courts.
2. The respondent undertakes to pay damages to the complainant to compensate for the copyright infringements [detailed above] to the sum of €250.00. Payment shall be made by 10.12.2013. With the payment, all claims arising from the legal infringements shall be settled and final.”
“It is currently not advisable for recipients of streaming warning letters sign or submit the undertaking to cease and desist,” Solmecke advises.
“There is a risk that at some time in the future, users click on the film again. This would mean that they breach the undertaking and would be required to pay the contractual penalty.
“In our opinion, the internet users are not obliged to submit the undertaking to cease and desist, especially if they have not committed the alleged infringement but are only the connection owner.”
D. Streaming is not illegal
1. Right to make a private copy
“The legal position concerning streaming in Germany is currently the subject of heated debate amongst legal experts,” Christian Solmecke explains, “There are currently no legal cases or leading judgments on the.”
Under § 53 of the German Copyright Act, there is a right to make private copies of copyright-protected material, provided the source has not been disseminated in a clearly illegal manner.
“In our opinion the users of Redtube have not committed any criminal offence in these cases. Unlike the cases concerning Kino.to, the films on Redtude are not being disseminated in a clearly illegal manner,” Solmecke continued.
2. Temporary copy
Furthermore, any copy created during streaming is only temporarily stored for just a few seconds in the buffer (RAM); they have no inherent commercial value and they are a necessary technical measure. Such copies are permitted under § 44a German Copyright Act.
“Therefore, even if you agree with the argument that users can be considered to have ‘stored’ a copy of the film on their computer in the RAM, this action is protected by the fact that it is only temporary, is of a technical nature and has no independent commercial value” Solmecke concludes.
The position could be somewhat different if users have downloaded the films onto their hard drives and such a download was not permitted by Redtube. In this case, the act of downloading could be considered the circumvention of technical measures designed to protect the streaming content from being downloaded. This is considered illegal and is not covered by the right to make a private copy.
However, it would most likely be difficult for copyright holders to establish whether a film has been downloaded or only streamed.
E. Arbitrary legal scrutiny
“It is strange that the Regional Court of Cologne even granted the orders for the internet service provider to disclosure the personal information of connection owners. If the judges had sufficiently scrutinised the disclosure applications, they would have seen that in these cases, no copyright infringement has been committed.
“It seems that the disclosure applications are, much like in file sharing cases, simply being waved through,” Solmecke claims.
We strongly advise all recipients of these streaming warning letters to defend against the claims being made.
“If you have received a streaming warning letter you should refuse to submit the undertaking to cease and desist and not make any payments,” Solmecke advises.
“Even though the legal position concerning streaming has not yet been clarified by the courts, the better arguments must surely be in favour of consumers of such films.
“A very tricky question is how the copyright holders even obtained the IP addresses in the first place. Normally, only platform operators have access to IP addresses and this is one reason why streaming had up to this point not been the subject of copyright warning letters.”
If you have received a streaming warning letter, we can help defend you. Contact our expert team of German lawyers on +49 (0) 221 / 951 563 0.
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