We all have our reasons to turn to illegal download in Germany. For some it’s about binge-watching the latest HBO hit series, for others it’s about getting their hands first on the latest Coldplay album. Some even want to get their hands on a rare 1991 version of the Star-Wars trilogy. Whatever it is, you might have gotten away with it in your home country. However, illegally downloading copyrighted content in Germany is severely condemned by law and is frequently enforced by private law firms who send cease and desist letters.
If you are reading those lines, you are probably holding an Abmahnung letter from a German lawyer asking you to pay a hefty fine because you were caught in the act. I will ask you not to panic and will reply to the many questions you have right now.
Here is everything you want to know on how to respond to a warning letter for illegally downloading copyrighted content in Germany.
- Illegal download of copyrighted material in Germany, the basic stuff
- What am really guilty of ?
- Who is responsible and who should pay?
- How did they could identify me and find my address?
- Do they really have the right to fine me so much? Can it really go to court?
- Is this a real german law firm and not a scam? Do they really work with the copyright holders?
- What is this “Unterlassungserklärung” document and what should i do with it?
- Now tell me what can i do about this warning letter
Illegal download of copyrighted material in Germany, the basic stuff
What am really guilty of ?
German laws concerning file-sharing are pretty strict and clearly condemn any kind of file sharing activity related to copyrighted content. While both download and upload are condemned by law, it’s really in reality the uploading part of the process that will be rewarded with a warning letter. Using services like torrent clients makes you automatically share the file you are downloading. This is why torrent and other P2P clients users receive a lot of letters from German lawyers.
For this same reason, users of streaming services rarely get in trouble because it remains a grey area as far the law is concerned. Although, this might change in the future, a 2014 decision from the European Court of Justice established that caching the streamed content in your browser is only a necessary & temporary technical process that doesn’t lead to copyright infringement. This decision has no jurisprudence value however.
On the document, you might see a reference to the set of laws dealing with copyright infringement in Germany; “Urheberrechtsgesetz” or “UrhG”. The article making it illegal is § 19a UrhG.
Who is responsible and who should pay?
German courts have stated that the owner of the internet access is in theory responsible for any wrong-doings happening on that network. They are responsible for securing it so other people don’t use it to download copyrighted content in Germany. This might bring up tensions if you are living in a WG and it’s not your name on the internet provider’s contract. In that case, the owner can “discharge” the fault onto the real culprit to be cleared of all charges if necessary.
How did they could identify me and find my address?
Those German law firms sending warning letters usually hire specialized third-party services that are scanning P2P nodes and clients, recording IP adresses that are currently downloading illegally in Germany. They are then authorized by law to ask your internet provider to disclose any information linked to that IP adress. This is how they obtained your private details.
Do they really have the right to fine me so much? Can it really go to court?
There is no clear set of rules that puts a figure on the fine you have received. It might be 900€ per illegally downloaded song in Germany or 2000€ for downloading a movie in Germany. The figure is entirely up to them. We will see later how it is possible to bargain it down a little. Although they do threaten to take this to court, it’s relatively quite rare it happens. It mostly an argument to scare you into paying fast and without asking any questions.
However, make sure to see the difference between the different fees mentioned in this document. There are fee for sending you this Abmahnung, the contract penalty & the fine mentioned as repair for their clients,. Also note that a law passed in 2013 should limit Abmahnung and legal claim fees to 150€ & 450€ respectively.
Is this a real german law firm and not a scam? Do they really work with the copyright holders?
Now this is a little tricky because it is true that some scam letters (e.g from non-existing “Kroner & Kollegen” law firm) have been sent around and they are not entitled to represent the copyright holder. However, most often than not, the warning letter for illegally downloading copyrighted content is a real one coming from a real law firm who represents company like Viacom, Sony, 20th Century Fox, etc.
Here are some law firms sending cease and desist letters in Germany (hat-tip to Raychenon.com):
Auffenberg, Petzhold, Witte; Baumgarten & Brandt; Bindhart , Fiedler, Zerbe; CSR; Daniel Sebastian; Denecke Haxthausen & Partner; Fareds; Johannes Rübenach; Kornmeier & Patner; Lihl; Lutz Schroeder; Marcus Meier; Marko Schiek; Negele; Nümann und Lang; Paulus; Philipp Marquort; Rainer Munderloh; Rasch; Reichelt, Klute, Aßmann; Sasse und Patner; Schalast & Patner; Scheuermann,Westerhoff, Strittmatter; Schutt, Waetke; SKW Schwarz; U+C; Vahrenwald & Kretschmer; Waldorf Frommer; WeSaveYourCopyrights; Winterstein; Zimmermann & Decker.
Rule number 1: Don’t panic and don’t send anything back
What is this “Unterlassungserklärung” document and what should i do with it?
Together with the warning letter establishing your identity and the content, there is another document called “Unterlassungserklärung”. This is the German equivalent to a cease and desist letter that the law firm wants you to sign to prove that you recognize yourself to be guilty of the accusations. Do not sign this document and do not send it back! By doing so, you would give more legal ground against you and would have to pay.
Now tell me what can i do about this warning letter
There are different courses of action you can take at this point and i guess it depends on how bold you are and how good you are dealing with a possibly nerve-racking situation.
1- Pay-up right away
Let’s be honest now: those letters are an attempt at scaring you off and pressuring you into paying the full amount. This is even more impressive for a foreigner that doesn’t understand German completely. You shouldn’t panic and pay-up without asking any questions as there is room for negotiation. After all, you have to remember that it is not the government sending you those letters; the fine hasn’t been set by law.
2- Do nothing
While curling yourself in a ball and hoping that it will go away might not seem like the mature and adult thing to do, this reaction might still have a few arguments. Reacting this way is basically counting on the weaknesses of the system; those German law firms are very busy you see. They send hundred of thousands of warning letters a year to the average Joe for illegally downloading movies in Germany. They know very well that they won’t be able to handle each individual case manually so they might no simply follow-up, should you not reply to their first Abmahnung.
Then again, there is also a good chance that you might be part of the chosen ones for whom it doesn’t go away. If they do follow-up, additional legal fees might occur and it can be enforced. This is a risk you take if you pick this option.
Doing nothing is a viable option but it can back-fire at you
3- Seek legal counselling
They come at you with legal weaponry? It’s then maybe time to gear up with some of your own and get in touch with a lawyer. Judging from the cases i have heard around me and in forums around the internetz, this seems to be a popular option. It’s a good compromise between costs, stress & time spent dealing with a fine for illegal file sharing in Germany. Sure, it’s not cheap but you might in turn save hundreds of euros for negotiating a cheaper fine or even not paying it all.
What a lawyer will do is to send a modified cease and desist letter in your behalf that basically says that you are sorry for what happened but you still don’t recognize that you are guilty and that you won’t do that in the future.
Fees for doing so with German lawyers specialized in copyright infringement cases can vary anywhere between 50€ to 250€. It’s really worth it in a lot of cases. Remember that the first initial phone call or meeting is always for free by law, so it never hurts just to ask.
I wish you good luck in fighting against the odds. I hope this post helped you understand your situation.
Disclaimer: this post is purely for informative purpose about what to do when caught illegal file sharing in germany. It doesn’t replace the counselling for a professional attorney. Please make sure you fully understand your situation before taking any action. Better safe than sorry <3 <3 <3.
Also a big thank you to Oliver from the Frankfurt Expat blog, whose post on the legality of streaming helped me fine tune some details of this article.
If you are living near or around Frankfurt, check his blog out, it’s a good read to discover the city.