File Sharing

Preventative declarations to cease and desist are legal

In February of this year Germany’s Federal Court of Justice ruled in favour of one of Wilde Beuger Solmecke’s file sharing clients in a case concerning preventative declarations to cease and desist (Az. I ZR 237/11). The judgment’s underlying reasons have now been published.

Preventative declarations to cease and desist are legal © fotodo - Fotolia.com

Preventative declarations to cease and desist are legal © fotodo – Fotolia.com

Preventative declarations to cease and desist

When assisting clients who have received file sharing warning letters, Wilde Beuger Solmecke regularly submits preventative declarations to cease and desist.

In reaction to this strategy a German law firm brought an action for compensation arguing that the flood of unsolicited declarations to cease and desist was akin to spam e-mail.

Germany’s Federal Court of Justice (Bundesgerichtshof, BGH) ruled in favour of Wilde Beuger Solmecke, stating that the strategy does not impede the recipient law firm’s course of business.

As a result law firms which receive preventative declaration to cease and desist are not entitled to compensation or payment for processing the documents.

Legal protection

The BGH has confirmed that submitting preventative declarations to cease and desist is a legitimate way of protecting clients from future claims, especially if warning letters from other copyright owners have been received.

The court ruled that the individual’s interests in minimising costs and protecting his legal position outweigh those of the law firm in not being inconvenienced.

According to the BGH, preventative declarations to cease and desist do not represent an unreasonable burden on law firms as they are not obliged to examine the declarations. Furthermore, law firms are not obliged to accept such declarations and are not set a time limit for reacting to the declarations.

Course of business

The BGH asserts that accepting preventative declarations to cease and desist belongs to the daily course of business of those companies which send warning letters for online copyright infringements. The court claims that such a position cannot be compared to receiving unsolicited spam e-mails.

You can access the full judgment here.

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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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