If you have discovered a legal letter consisting of up to 15 pages under the subject Abmahnung by a German law firm named
Waldorf Frommer or Daniel Sebastian or Fareds or Rasch etc.
in your mailbox, you have realized - even if your German is not
perfect - that you are
accused of and fined for file sharing. Here you will find answers to the most frequently asked questions:
1. What exactly am I accused of and what am I requested to do?
If you have received a so-called Abmahnung, you are indeed accused of illegal distribution of copyrighted material via a p2p-network such as the torrent or the edonkey network. It should be noted, that whilst downloading something via a p2p-network, this data is also automatically provided within the network. So everybody that downloads data also uploads and distributes this data at the same time. Also Popcorn Time and similar websites and services are p2p-networks.
In order to make sure that this will be not be happening again, an Abmahnung (Warning Letter) has been sent to you, demanding that you will cease and desist from these kind of actions in the future by signing a so-called Unterlassungserklärung - a cease and desist declaration..
Additionally, it is demanded that you reimburse the entertainment company, whose copyrights have been allegedly infringed, for the legal fees incurred and pay a lump sum for damages, often referred to as a license fee.
These monetary claims (legal fees + license fees) can range anywhere between 124.- and 1,500.- EUR.
2. Isn't this just a scam? If this was sincere, how could they get a hold of my address?
All major and many minor entertainment companies monitor the p2p-networks for copyright infringements. If you are customer of a German internet provider such as Deutsche Telekom, TKS, Kabel Deutschland or 1&1, a dynamic IP-address is assigned to you when you access the internet. In a p2p-network the IP-address is visible. The IP-addresses are then registered and a warrant by a German court is requested that the provider has to disclose to which customer the specific IP-address was assigned to at a specific time.
Though there are also scam letters, it is more likely, that the letter and the lawyers are very real and not a scam. A notable exception were letters by the non-existent law firm “Kroner & Kollegen”. That was indeed a scam letter.
3. These claims for payment seem to be pretty steep. Are these demands legit? What about the 5.000,- EUR, that are mentioned
in the Unterlassungserklärung?
There is no easy answer to the question whether the monetary claims are enforceable, since it depends on what data was allegedly shared.
The 5.000,- EUR, that are mentioned in the Unterlassungserklärung are NOT a current claim for payment. This
amount would only have to be paid as a penalty, if filesharing is done in the future although a cease and desist declaration was signed before.
4. What if I just ignore the letter?
If you decide to simply ignore the letter, this could lead to additional legal costs, since you could be sued for a cease-and-desist order. Especially, it can go as far as a preliminary injunction is being sought against you. If this is successful, this will lead to legal fees of appr. 1.000,- EUR, which are enforcable at once.
5. I feel, that I am falsely accused and I do not want to sign or pay anything.
In order to avoid what I described under 4., it is advisable to sign a cease and desist declaration (Unterlassungserklärung).
In the past, it was very advisable to do this with the amendment that this is done ohne Anerkennung einer Rechtspflicht, which means that cease and desist is declared without admitting any guilt or obligation to do so.
I still recommend it, however by legal means, I do not think it is actuanecessary, as on 24 Sep 2013 (I ZR 219/12) the Bundesgerichtshof (High Federal Court of Germany = Highest German Court besides the German Supreme Court) ruled, that simply signing a cease and desist declaration is not an admission of guilt. This verdict was in a case regarding Unfair Business Practices and not Filesharing, but in my opinion there is no reason, why this should not apply to filesharing cases. That said, in my opinion the cease and desist declaration does not necessarily have to be modified any longer in this regard.
In any case, it is however very important, that any promises to make any payments, are crossed out or erased.
6. Will I get more of these letters, especially if I sign and pay?
There is of course a possibilty that more warning letters - also from other law firms - are sent to your home. However, from my experience this can happen regardless of the response to the first letter received.
7. What is the statute of limitations?
a) The statute of limitations on the monetary claims for legal fees is three years, beginning the 1st of January following the year of the Abmahnung:
Example: Abmahnung any time in 2010 --> statute of limitations: 31 December 2013 at 24.00 h.
b) The statute of limitations on the monetary claims for license fees is however ten years, beginning the 1st of January following the year of the Abmahnung.
8. I simply ignored all letters. Now, after years, I received a yellow letter. Is this serious? What shall I do?
If you have received a letter by a German court, usually in a yellow envelope with a date and a signature on the outside, it is time to act.
The first letter is the MAHNBESCHEID, which comes in a yellow envelope and consists of one large sheet of paper and is the first step of a law suit. You have 14 days after you received the letter to object to the claim. If you do not object, you will receive a VOLLSTRECKUNGSBESCHEID within appr. one month after you received the Mahnbescheid.
If you have received a VOLLSTRECKUNGSBESCHEID, which resembles the Mahnbescheid in appearance, you have another 14 days to object to the claim. If you miss the 14 day deadline after the Vollstreckungsbescheid, the court case is very likely lost without the chance of an appeal and you will have to pay.
It is good idea to stop ignoring the claims at this point and to either fight the claim or at least get a better deal.
9. Will I face criminal charges?
No. While in theory this would be possible, in practice criminal proceedings do not take place. The entertainment companies only press criminal charges in (very very) severe cases.
10. What are your fees, if I choose to retain your services to represent me? What can you do for me?
a) A listing of my services and fees for the out-of-court stage can be found here. There is a choice of services from "only a cease-and-declaration" to "full out-of-court-representation".
In file sharing cases, I do not charge a fee for an initial consultation over the phone. Call me at
0631 / 84 27 759 Monday to Friday between 10 am and 5 pm for a free consultation, if you like. Or write me an e-mail to kanzlei(at)polishuk.de and ask for a return call at a time that suits you.
If you have a low income, for instance if you are student or an intern, you might be eligible for legal aid. If you receive legal aid, the lawyer fee for out-of-court representation is only 15,- EUR incl. Tax. To be eligible for legal aid, you do not have to be a German citizen. Feel free to ask me about that option.
b) The goal is always, that you shall not pay or pay considerably less. In out-of-court cases it is my opinion, that any settlement including my fees should be less than the original claim brought against you. So even if you think you should pay something, but would like to pay less, you can give me a call and we can talk about this option.
c) In-court-representation is also available. Fees are based on the claim that is brought against you.
11. Can I hire you, although I do not live in or near Kaiserslautern?
Since 2008 I have counseled and represented clients from all over Germany, that have been fined for file sharing. File sharing cases can be easily handled via phone and e-mail and the vast majority of my clients in file sharing cases are not from Kaiserslautern, but live elsewhere in Germany and some even abroad. So if you are OK with a "distance lawyer", you are welcome to give me a call to find out, whether you would like to work with me.
Tel: 0631 / 84 27 759
Fax: 0631 / 27 75 73 009