File Sharing

New rules on unfair business practices already having an impact

New rules in Germany on unfair business practices which were adopted in June of this year are already having an impact. File sharing warning letters from the law firm Kornmeier & Partner are already “cheaper”.

New rules on unfair business practices are already having an impact © Nerlich-Images-Fotolia

New rules on unfair business practices are already having an impact © Nerlich-Images-Fotolia

Unfair business practices

The aim of the new rules on unfair business practices adopted in Germany in June 2013 is to address the so-called “Abmahnwahn” (warning letter madness). This term describes the phenomenon under which thousands of internet users in Germany receive warning letters accusing them of breaching copyright law through file sharing.

In reaction to the new legislation, file sharing warning letters from the law firm Kornmeier & Partner have already become “cheaper”.

In a recent case the law firm set the claim value at 1000 euros. This meant that only 150 euros compensation and 290 euros to cover legal costs were demanded. Previously the law firm had demanded more than 400 euros in legal costs.

The warning letter states that the reason for the “reduced” sum is the anticipated entry into force of the new rules on unfair business practices.

Transparency

The calculation of legal costs is also more transparent. A table lists the technical costs of investigating the copyright infringement and the costs obtaining a court order under § 101(9) of the German Copyright Act requiring the ISP to divulge the IP address.

In summary, the amount demanded in the file sharing warning letter has been dramatically reduced. In addition, the actual legal and technical costs are described in a more transparent manner.

It remains to be seen whether this move in the right direction will continue.

Protecting consumers from excessive warning letter costs

It can be seen that the new rules on unfair business practices and in particular addressing the excessive fees for file sharing warning letters is already having an effect.

Once the legislation comes into effect, legal fees for pursuing suspected file sharing copyright infringements will be capped at €155.30.

Furthermore, jurisdiction to hear claims will be restricted to the individual’s place of residence. This means that copyright holders will no longer be able to choose the most favourable court before which to bring their claim.

File sharing warning letters will also have to include concrete details as to the alleged copyright infringement and corresponding demand for compensation and reimbursement of legal fees must be verifiable.

However, the new rules have been criticised for allowing an exception to the cap on fees. Under the exception, copyright holders will be able to demand higher legal fees, provided it is justified by special circumstances.

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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