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German Law/Changing target for cease and desist letter (copyright law)

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QUESTION: Hello!
I was recently in Germany visiting my girlfriend, and while in her apartment I downloaded a movie so that I could watch it while spending my last night at the airport. It was just one movie, and the download took about 10 minutes. I know that it's illegal, but it was a one time thing, and I had already seen that movie on the cinema, so I thought it wasn't that bad...
Some time after I came home, my girlfriend's roommate (the owner of their apartment and the owner of the internet connection) contacted me and told me she had gotten a cease and desist letter from a law firm, and she had to pay a fine of more than 1000 for sharing this movie. My girlfriend and I had not spend any time with her during my stay, so she was completely unaware of what we were doing.
I read about these cease and desist letters on the internet, and the law says that she is responsible for what happens on her internet connection.
My question is: can we somehow make the blame come to me instead? She should not have to sign that letter because she did nothing wrong. I did something illegal and I am willing to admit it. Also, if she signs it, there will be a period of 30 years in which she may do anything wrong, because this will lead to really bad consequences for her. This is a bad situation in case she makes some small mistake. Is there anything we can do to get the cease and desist letter away from her and to me instead?
Thank you in advance
Best Regards
Boris

ANSWER: Hello Boris,

first of all respect for being honest about that and coming forward!

You can indeed accept legal responsibility and your girlfriend's flatmate will then be relieved of any civil and criminal responsibility.
In fact, even if you didn't do so, your girlfriend's roommate could have refused to pay, arguing that she did not know who was using the WiFi on that day and that she had no idea that anyone would be doing anything illegal with it. You could then contact the law firm who sent the cease-and-desist letter and acknowledge responsibility, but for example refuse to provide them with your address. Then they would get no money from anyone.

Different courts in Germany have ruled differently on the responsibility of the owner of the internet connection, but my advice is usually to not pay. A law firm cannot force anyone to pay. Only a court can. And 1,000 sounds rather too much anyway.

Unfortunately, in this case it sounds as if she already paid, in which case the law firm is under no obligation to return the money. (She paid voluntarily.) In your case, I therefore recommend to contact the law firm and ask them if they would be willing to accept a cease-and-desist letter from you instead and officially declare that they won't hold the owner of the internet connection liable in any way. As to the payment, it's probably easiest if you pay it to her and the law firm will inform you both that they will keep her payment but regard it as if it came from you.

I am not sure where the 30 years come from, because it doesn't sound like there is any court order (which would be enforceable for 30 years) or any criminal proceeding (the statute of limitations of which would be much less than 30 years).

Andreas Moser
www.moser-law.com
www.andreasmoser.wordpress.com


---------- FOLLOW-UP ----------

QUESTION: Hello again!

Thank you so much for the very fast and informative answer! I'm very impressed!
In fact, the flatmate has not payed yet, so there is still hope!
You say that my girlfriend's flatmate can refuse to pay and argue that she didn't do it and that she wasn't aware of it either. However, from what I have read by ardently searching for information on the subject, that option might not work. For example, here is one quote:

"The starting point in German law is that if you are the registered owner of an IP address and illegal downloading or file-sharing can be shown to have taken place through that IP address then you will be deemed responsible. The downloading or file-sharing is easy to prove by print outs of the data which has passed through a particular IP address on a particular time and date. This liability extends to situations where you have failed to security-protect your wireless connection and another person has used your connection without your knowledge or consent. In such
circumstances you will risk being found to be negligent and therefore held liable for the downloading or file-sharing."

Source: http://bfgnet.de/files/legal/Guide_Illegal_Downloading.pdf

Admittedly, I am uncertain of the reliability of this source, but I have found many articles where the same thing is being said: if it happens on your internet connection - it's your fault. This would imply that my girlfriend's flatmate cannot simply refuse to pay on account of her not being aware of what I was doing with her internet. Also, it might make my confession useless unless I take full responsibility formally (which would require that I supply them with my personal information, correct?)
Refusing to pay could lead to the law firm taking the case to the court, which would in all likelihood become much more expensive than the initial sum.
Regarding the 30 years, it seems that once you sign the letter, you are promising that you will "never" do it again. I found out that the letter says that this only applies to the movie in question though, so it turns out that it isn't really a big issue.

We have decided that trying to go for a settlement is the best way to go, seeing as this will lead to no major negative consequences for the flatmate.
How would she go about writing a letter about a settlement, and what can be done (what can I do) to make the sum become as reduced as possible? I am still a student (medicine) and 1000 is an incredibly large sum for me.

I am sorry for this lengthy text, and after looking at your website I realize that this isn't really your speciality within law. I still think you are the most reliable source I have found and I am very thankful for your help!

All the best
Boris

ANSWER: As I said, you will find different opinions on the liability of of the WiFi owner. Some courts rule on the side of strict liability, others are much more lenient and only assume a liability of the owner if they knew that something fishy was going on (e.g. constant downloading of the latest movies by flatmates; this is not the case in your case).

Although each case is of course different, some of the more lenient rulings can be found here: http://dejure.org/dienste/vernetzung/rechtsprechung?Gericht=BGH&Datum=15.11.2012 and here: http://dejure.org/dienste/vernetzung/rechtsprechung?Gericht=LG%20K%F6ln&Datum=14 But you always have to be careful when reading other decisions because Germany does not operate on a case law system. That means that each court is free to decide similar cases differently. Even judgements by higher courts are not binding. That is why a lot depends on the very specific circumstances of the case.

I would disagree with the intensity of obligations that the flatmate has. First of all, she has no obligation whatsoever towards a private law firm. They are not the police or a court. They cannot force her to divulge any information at all.
Even if she tells them that it was you who downloaded the film (and she has to tell them something), she is under no legal obligation to provide any further information that would lead to your identification. She can give them your name or an e-mail address, but I really don't think she should divulge more.

If you contact the law firm, you may want to refer to 97a II UrhG which limits the law firm's fees in some cases of cease-and-desist letters to 100 . The problem is that it's doubtful if this also applies for the download of a full movie (the law requires a "non-substantial copyright infringement") and it does not extend to the damages that the owner of the copyright may claim.

To sum it up, my strategy would be to contact the law firm, explain what happened and suggest a payment of 200 . Realistically, if you tell them that you reside abroad and that you are a student without any income, they will be happy to accept that instead of going to court.
Don't be too afraid of a court proceeding! The law firm does not want to go to court. They send out hundreds of letters like that every day. They make money with those who simply pay up, not with those whom they have to drag to court, especially not if they would have to enforce a judgement in another country. (I once represented a client who wanted to mail out thousands of cease-and-desist letters and I never took anyone to court. Too many people paid voluntarily.)

Good luck!
Andreas Moser
www.moser-law.com
www.andreasmoser.wordpress.com

---------- FOLLOW-UP ----------

QUESTION: Sorry for bothering you again about this, but I just thought I'd give you an update about how things are proceeding.
After the flatmate found out that the cease and desist only applies to the movie that was part of the copyright infringement, she feels like she just wants to get this over with as fast as possible. She is going to write a letter about a settlement, and perhaps not even mention me at all. I will then pay her whatever amount is decided upon.
I don't know if this is the best option, but this is what she wants to do, and since we don't really know each other that well, she doesn't seem overly motivated to put a lot of energy into it. Well, she says that she will try to write it as persuading as possible, but I feel a bit powerless because I have quite a lot more motivation than her to find really good reasons for settling for a lower sum, while she most likely just wants to put this whole ordeal behind her. I would have felt that I had more options if this was directed only to me, but the flatmate really doesn't want to take any risks for me at all.

I don't know when the "deadline" is for the letter (I should have asked her about that), but she received it last friday, and from what I've heard, the deadlines are typically very short. She is afraid of reprecussions should she fail to keep to this deadline, and I can't convince her otherwise.
So now I feel like the best thing I can do is to try to supply the flatmate with as good arguments as possible, and as quick as possible.
I would like to hear your view on one detail of the letter and the crime. In the letter, what is actually said is that the movie was shared, and actually does not say anything about it being downloaded.
I checked the program I used for the download, and what the maximum speed for the upload was set to (that is the "roof" for how fast anything can be uploaded). It was set to 10 kilobytes per second, and the movie in question was in fact 1.8 gigabytes large. I did a quick calculation, and this would mean that the maximum amount that could have been uploaded within 10 minutes (the time the download lasted) would be 600 kilobytes, which is approximately 0.03% of the size of the movie.
Do you think it would be enough to mention this to them to make 97a II UrhG come into play? This fact also means that the damages done to the company are very low also. What is your opinion?
Well, that is my one hope for now. I will suggest that the flatmate includes that information in her letter, and when she has written the letter, she will send it to me so that I may read through it. I will have to use google translate for that though.

I have given you the highest ratings on all aspects of my correspondence with you, and you have given me a great first impression of allexperts.com and I will definitely come back here should I have any questions about anything in the future. Hopefully the other experts are as impressive as you are!

Thank you so much for all you help! You are awesome.
Best Regards
Boris

Answer
Hello Boris,

yes, I think these are valid arguments to raise 97a II UrhG.
Also, the more arguments you have to show that your case is special, the more complicated it would be for the law firm to bring a lawsuit. They will probably shy away from it because in the same time that it would take them to prepare a lawsuit they can mail out another 200 letters. If only a small percentage of the recipients of these letters pay, they make much more money than by going after your girlfriend's flatmate, let alone going after you in another country.

The deadlines are usually very short indeed, but remember that this is a deadline given by somebody who is in no position to give any deadlines to anyone. It's a private law firm. It's like me sending out letters and giving people deadlines to sign something and send me money.
(It is no guarantee that this will always go like this, but I personally have so far simply ignored all cease-and-desist letters which I have received [although I never received one for downloading a movie] and nothing ever happened afterwards.)

But it sounds as if the owner of the WiFi is scared.
Because the letter is directed towards her, there is unfortunately nothing that you can do to force her to cooperate with you. However, if you keep trying to pass on legal advice to her and let her know that you are willing to take the responsibility (including payment of a lower amount than thus far demanded), she would have a hard time going after you for the payment because you would have the argument that she failed to mitigate the damage. Thus, legally, if she doesn't cooperate with you, she runs the risk of paying everything or most of the 1000 herself. (I am aware that the situation is more complicated in reality because your girlfriend lives there.)

Andreas Moser
www.moser-law.com
www.andreasmoser.wordpress.com

German Law

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Andreas Moser

Expertise

Extensive experience in international family law, especially international child abductions and child custody cases. All other areas of German law as well: constitutional law, criminal law, business and contract law, immigration law, inheritance law, and so on.

Experience

Lawyer in Germany from 2002 to 2009. Lawyer for US Army JAG Corps before. Bar-certified specialisation in family law and in administrative law. Articles and lectures about international and domestic family law.

Publications
www.andreasmoser.wordpress.com

Education/Credentials
2000 Law Degree from University of Regensburg, Germany 2002 admitted to the bar (until 2009) 2013 MA Philosophy at the Open University, UK

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