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 for compensation. 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 – What you should know:
What am I 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.
Since April 2017, users of illegal streaming services (also broadcasting of live events) can also get in trouble because of a decision from the European Court of Justice. It established (here) that users of such services are indeed acting unlawfully. However, unlike P2P, it’s very difficult to identify users of such streaming platforms as IP adresses are often not stored by these platforms in the long-term, making the enforcement unlikely. Only premium users can easily identified.
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.
Again, this is why law enforcement is really much more difficult to apply for illegal streaming services users. IP adresses are not stored on servers on the long-run and if the police should request a list, it’s only after a considerable amount of time. Beware however premium users; if you are paying a fee on one of those platforms, your IP will definitely be stored on the server, thereby increasing the risks of getting caught.
If you want to protect your traffic and use all services privately, you can get a VPN that will hide everything from anyone else. You can use NordVPN for example, which often considered one of the bests out there, especially since streaming works well with it and you connect up to 6 devices with one account (switch to English in the footer if needed).
Do they really have the right to claim so much? Can it really go to court?
There is no clear set of rules that puts a figure for infringements. The figure is entirely up to them within a certain range. 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 fees for sending you this Abmahnung, the fine mentioned as repair for their clients (more details on that later in the post). Also note that a law passed in 2013 should limit Abmahnung and legal claim fees to 150€ & 450€ respectively.
Offense repairs on streaming cases are much lower, making it less profitable for law firms to pursue; legal claim fees remain the same as for P2P cases but the fine per film can only be 5 to 10€.
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.
How to spot a fake cease and desist letter for copyright infringement in Germany
Beware of the following signs, they can be pointers. In doubt, always consult with a professional.
- You only get an email: Also this is possible is some other field of law, illegal file sharing cases always come by post.
- It doesn’t come with a cease and desist letter: If it’s only asking for money with obscure legal jargon, it’s worthless,
- Fictitious law firm or no contact details to be found.
- A bank account located outside of Germany.
- The copyrighted material is not explicitly mentioned or described, nor is their client clearly named.
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.
How are fees structured? What is the legal basis behind them?
Law firms in Germany are entitled by law to claim compensation on behalf of their clients for the infringement. The total number you might see on your letter is based on 3 different legal concepts:
- Costs based on the cease and desist order (Unterlassungsansprüche)
- Costs based on the actual compensation itself (Schadensersatzansprüche)
- Costs based on processing fees involved in dealing with your case (Aufwendungsersatzansprüche)
Working under the assumption that a signed cease and desist letter will prevent further infringements by the culprit, the law firm will generally only press compensation and reimbursement charges.
Together, these generally amount to around about 1.000€ per file. The processing fees are
calculated based on the compensation and cease and desist charges, while also being regulated by the German lawyers remuneration act (Rechtsanwaltsvergütungsgesetz, RVG). As a rule, the processing fees typically end up in a range included between 100€ & 300€.
Here is a example based on real-life practices from a well known law firm. In most cases:
- The total number is 935,8€.
- 700€ is for compensation.
- 235€ is for processing fees.
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 for it. 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- Hire a lawyer
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 internet, this seems to be a popular option. 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, but you have to pay costs upfront without any guarantee.
4- Use a mediation service
All options listed before are all valid and should be carefully considered. However, they come with one drawback: you spend a fair chunk of cash, time or stress without any certainty on the legal outcome of your case.
Another option could be to turn to a mediation service like the one provided by Abmahnungshilfe. A platform like this is specializing in reducing the amount of the claim. They work with expert mediators and lawyers in
this field of law. Their offering is really well tailored to foreigners:
- They provide this service digitally, 100% in English.
- It is success-based. This means you only pay something if your case is settled successfully and permanently.
- They check your case for free.
- Their fee is transparent (30-35% of the total savings made on the original claim amount).
It is about finding the right strategy for you, whether that is negotiating a settlement with the law firm or fighting back with a lawyer. As it is success-based and the first check is for free, you can still decide to take one of the other options listed here, after they checked you case. It is worth trying out by using the form on the homepage.
I wish you good luck in fighting against the odds. I hope this post helped you understand your situation.
Also, if you want to use your internet access as you want, don’t forget you can fully hide your traffic with a good VPN like NordVPN. Considered one of the bests on the market, safe and easy to use, it works well for this kind of use too.
Warning letters for torrenting – FAQ
There are no rules defining the probability that you could get caught, and also no way to tell the delay with which you can receive this letter. Only time can tell.
This post is about torrenting and streaming. I cannot answer about any other means or technologies. Current tools available to law practices to track data transfers is only applicable to torrent nodes and streams right now.
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.