Dipl. Biotechnol. Vanessa Bockhorni
Principally, a difference is made between the liability as offender and the liability as interferer regarding the above-mentioned problem. Liability for disturbance applies usually to the connection owner whose IP address has been identified by a qualified service provider as soon as a work of film or music or the like is illegally downloaded or uploaded via his connection and is made available to other users. As a consequence, a warning can be given to the connection owner. The offender, the actual person responsible for the upload or download of a film or music file, is often not the connection owner himself but a person living in the same household. Besides an injunctive relief, claims for compensation can be enforced against this person.
The question frequently arises as to what extent one must personally be liable for a copyright infringement caused by a third party, e.g. by a person living in the same household. Here, there were, depending on the Court, different perceptions regarding the connection owner’s duties of examination and instruction. With regard to the extent of the obligations of examination and instruction, the Federal Court of Justice now decided with its decision of November 15, 2012 that parents already meet their responsibility with a normally developed, minor child (in the present case, the child was 13 years old) when a ban on the visit of file sharing sites on the internet was imposed. A duty to supervise or to even lock the internet does therefore generally not apply. This is only necessary when there is concrete evidence regarding a rights infringing use. In the present case, the parents were not obliged to compensate for the damage (decision I. ZR 74/12).
Some big law firms have specialized in the sending of warning letters for copyright infringements whereas these warning letters usually contain a pre-formulated declaration to cease and desist. In these declarations, it is stipulated that with payment of a lump sum in the frame of a settlement offer – which is regularly unreasonably high (about € 500.00 – 1000.00), all claims for compensation of loss and damage towards the infringer and attorney’s fees are satisfied. These warning letters and pre-formulated declarations should be treated with the utmost caution and we highly recommend not to sign a pre-formulated declaration to cease and desist without having it reviewed by competent patent attorneys and lawyers. A warning letter should be checked in every case as the costs arising in case of a justified warning letter can often be reduced and the formulations be changed to your advantage.
Author: Dipl. Biotechnol. Vanessa Bockhorni (Patent Attorney), Update 1/2013
Patent Attorneys and Lawyers Bockhorni & Kollegen
Munich/ Germany
www.patguard.de
