Illegal downloads in Germany

Downloading music, films and video games; there’s nothing easier, right? But what are the risks under German law?

Update: Jan 2017


I just received a Copyright infringement notice: What do I do?

The Copyright infringement notice written by German lawyers (German: Abmahnung), informs you that you violated the copyright law by illegally downloading a film, music or any other web content. The formal notice requests you to fill in and return a signed document (Unterlassungserklärung) declaring that you have not downloaded the mentioned files, and asks you to pay a fine within a given period.

Consumers often turn to the Centre for Consumer Protection in Europe based in Kehl for help with similar matters. Therefore, the Center for Consumer Protection has published some advice to help consumers manage their “clicks”.

Our advice on how to react to this letter:

Even if you are convinced that you haven’t downloaded anything illegally, your children or someone else might have. It could be that someone used your connection without your knowledge and/or consent.

Note that several German courts have already held the line owner (Anschlussinhaber) responsible for the download unless they could prove that a third person used their connection without authorization. The Bundesgerichtshof (Federal Court of German Justice) decided in its ruling on June 11, 2015 that the owner of the line can be held responsible for every illegal download. (BGH, 11.06.2015 – I ZR 75/14). So to escape the fine, you need to supply evidence to prove you did not download anything illegal.

By ignoring the formal notice (Abmahnung) you increase the possibility of legal actions being taken against you. Consult a lawyer before returning the signed Unterlassungserklärung. The Unterlassungserklärung often requires modifications (see below).

In order to prevent your internet access from being used for unintended downloads, make sure you secure it and set parental controls if need be. If your connection is not secure, it only takes a couple of clicks to gain access and download files without your consent.

Password? Good to know: German Courts expect you to secure your WiFi- connection with a password, although it is not necessary to adapt it to new WiFi security norms.

Illegal downloads by minors

The Bundesgerichtshof decided that parents cannot always be held liable for copyright infringements of their children, given that the children were forbidden to download protected files. The Bundesgerichtshof expects parents to inform their children of the possible legal risks. According to the judges, parents should explain to their children why and how downloading can be illegal.

Please note that once you sign the Unterlassungserklärung on behalf of your child, it can be used to hold your child responsible for every new illegal download they commit once they are of age.

The formal notice (Abmahnung) demands two things from the recipient:

  • To sign a written declaration (Unterlassungserklärung)
  • To pay the damages corresponding to the copyright violation of the downloaded file

The Unterlassungserklärung is a declaration stating that you will not, under the penalty of additional damages for every new download, illegally download in the future.

More often than not, the formal notice has to be modified, since the downloading ban might be too expensive or may demand inappropriate actions.

It is highly important to clarify that your declaration is not a confession, especially if you have not illegally downloaded.

Seeking a lawyer’s advice is highly recommended.

Consult the Centre for Consumer Protection in Europe for free counselling.

A rapid response is essential in order to respect the deadline for submitting the declaration.

On average, the fine for every illegally downloaded file is 1000€.

Although this fine may be considered to be too high, fines of 1000 € are common.. Nevertheless, the Bundesgerichtshof considers that 200 € per song that is illegally downloaded is reasonable.

After finding out about your rights, you can attempt to negotiate the amount with the law firm that issued you with the copyright infringement notice. It is therefore important to ask for legal assistance beforehand, in order for the negotiations to take place in the best conditions.  

Please be aware that if the negotiations fail, this will lead to legal actions during which a judge will make a case-by-case decision on the amount of the fine you have to pay. In this case, the set amount  may be reduced or increased.

Useful Information about the Unterlassungserklärung

Paragraph 97a III Urheberrechtsgesetz (German Copyright Act) states that the Reimbursement of the expenses necessarily incurred in the form of statutory fees for using the services of a lawyer shall be limited to the fees for a claim to desist from and eliminate the infringement with a value in dispute of 1000 €. Thus the legal fees will not exceed 150 €. However, legal fees related to the damages will apply as well.

You receive an Abmahnung stating that you owe 900 € in legal fees because you illegally downloaded three songs. You actually owe:

  • 150 € legal fees for the Unterlassungsanspruch based on a value of 1000 €
  • 105.85 € legal fees for damages based on a value of 600 € (3 songs * 200€ per song)

That is, 255.85 € for legal fees.

Hint

Always make sure you have no downloading software installed on your computer, even before receiving a formal notice. “Peer to peer downloading” (p2p) might also be prohibited if the downloaded content is subject to patents or copyright.

Do not wait until you receive a formal notice to secure your WiFi- network.

How and why would you be sent an Abmahnung?

Copyright society’s hire companies specialized in monitoring exchange platforms and p2p networks. Their purpose is to unveil possible breaches of copyright law.

When an illegal download is spotted, the IP address is identified. Lawyers contacted by copyright societies then ask the internet provider to disclose the IP address owner’s identity.

Since these are protected data, the internet provider cannot disclose the identity of a client that easily. Law firms usually attach a German Court order to their request. The right to disclose this kind of information is then granted by a judge decision (Beschluss). A copy of the judgement is usually attached to the Abmahnung.

Glossary

  • Abmahnung

Mail sent to you by the law firm. It notifies you of the moral and financial obligations you have to honour as a result of the illegal download from your internet connection.

  • IP address (Internet Protocol)

An IP address is an identification number that enables a computer to connect to the internet. This number may be modified by the provider.

  • Anschlussinhaber

Owner of the internet connection; this is usually the person who signed the contract with an internet provider.

  • Unterlassungsanspruch

Legal action taken by the copyright holder  against a person who violated their copyright (prohibitory injunction).

  • Unterlassungserklärung or Unterlassungsvertrag

Declaration of an individual’s commitment to refrain from illegally downloading files in the future, under the penalty of additional charges.