Help me: i was caught illegally downloading in Germany

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.

Warning letter illegal file sharing germany

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 ?

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.

Cease and desist letter file sharing germany

Cease and desist letter for Downloading Deadpool (source: Quora.com)

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.

Sources: 1, 2, 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.

17 Comments

  • Reply Attila 08/02/2017 at 20:06

    Hi!
    I have a problem. I came to Germany 2 month ago, and I was staying with my sister, and I wasn’t aware of the torrent downloads laws and I downloaded sreies and movies. Now she didn’t get any warning letters or at least not to her current address, maybe at her previous address, even though she updated her address with her IPS provider. So she didn’t received any letter as I said but the firm took the money strait from her bank account 650 eouros. Is that possible or legal at all? she went to the bank to ask them to put the money back, but they siad they can’t do anything about it. Any suggestion?

    • Reply Bastien - Settle in Berlin 09/02/2017 at 09:55

      Hello Attila, as mentioned in the post, it can happen that money is taken directly from your account but it is usually a last resort thing. It happens only when many warning letters have been sent and all ignored so it stays pretty rare. Still, yes it is possible. However, if no letters were sent, it might not be legal. Your sister would need to prove that she never received them probably.

  • Reply tobik 06/02/2017 at 21:45

    I’m curious about one thing: are the Internet providers in Germany required by law to keep logs about the activity of their clients? Where I come from, it is common that hundreds or perhaps even thousands of people connected through one provider share the same IP address. Which means that without the logs, it is pretty much impossible to identify who was downloading at given time.

    • Reply Bastien - Settle in Berlin 07/02/2017 at 10:37

      Hi Tobik. Apparently, most providers are saving the logs between 7 to 30 days after, although it doesn’t seem to be required by law. (Source)

      • Reply tobik 07/02/2017 at 21:13

        Thank you! As my German is rather rusty, this information was hard to find for me 🙂 I guess that the reason why they do it is simply to cover their back, i.e, so that they can prove it wasn’t them who was downloading.

  • Reply john 27/01/2017 at 19:30

    I was told that if you do not pay by the deadline, or even react immediately by the deadline, in order to give you the time to get paperwork ready and find a lawyer, that you should not panic. Nothing will happen to begin with as they will not sue for at least a year. Is this true?

    • Reply Bastien - Settle in Berlin 27/01/2017 at 19:52

      Hello John. Maybe there is common practice but i don’t think there is defined rule because it’s up to each lawyer company to decide when to react and at which speed. Again, let’s not forget: there is nothing in the law that defines the conditions under which they should do that.

  • Reply Silly Me 27/01/2017 at 19:13

    If you received a letter for a couple of movie downloads but you downloaded more than that, do you know if the lawyer can cut a deal with them for one amount and no more letters? It could get super crazy expensive otherwise.

    • Reply Bastien - Settle in Berlin 27/01/2017 at 19:32

      I would say anything is possible because it is a matter of negotiation between lawyers and not a matter of law as far as penalty/fine is concerned. Again; the threat comes from private lawyer practices and not from the government. Both parties want the fastest resolution at the best possible price.

  • Reply Bruce Wayne 26/01/2017 at 20:55

    Maybe a stupid question, but what if you act like you never received the letter? I mean they can’t prove you ever received it unless they bring it to you by themselves.

    • Reply Bastien - Settle in Berlin 27/01/2017 at 19:40

      Hello Bat. This behavior would be considered the same as ignoring the letters. It is likely that you would need to prove why you never received them if it ever came to court. Just an opinion though, a lawyer would know.

  • Reply Ana J. 13/01/2017 at 18:08

    Hey, what an awesome site!
    I was visiting some relatives in Berlin and i illegally made a download. It was “innocent” because I’m from Portugal and the laws are different there (you can torrent but you can’t sell it).
    Any idea to make a plea and solve this problem?

    Best regards,

    kisses

    • Reply Bastien - Settle in Berlin 16/01/2017 at 12:36

      Hi Ana. German rules will apply to your case (and your friends’s too, by extension) even though you are from Portugal and acted without knowledge of the law. So the scenarii and solutions mentioned in this article are valid too.

  • Reply Bjorn 05/01/2017 at 19:16

    Hi.
    Im searching for a lawyer to help with this, but Im having some trouble finding a good one. I have read several places that there are loads of lawyers working for Waldorf Frommer and will only screw you over. Any suggestions to which company to use?

    • Reply Bastien - Settle in Berlin 06/01/2017 at 13:48

      Hi Bjorn. That’s a very good question but i haven’t put time into this. Maybe you can tell us what your search uncovered with a new comment in the future?

  • Reply Teo Nguyent 29/11/2016 at 15:01

    Hi.
    Thank you for the post. Very informative and helpful. It took some stress away. I’m in the process of hiring a lawyer. Do you know how long I have to reply to the letter?

    • Reply Bastien - Settle in Berlin 29/11/2016 at 19:11

      Hi Teo, thanks for leaving a message. It’s usually mentioned on the letter itself when they expect a response from you. However, if the deadline is near, it’s usually to add even more pressure on you.

    Leave a Reply