Has illegal filesharing just become "a little cheaper" in Germany?
An interesting decision on damages in cases of copyright infringing file-sharing has been handed down by the Regional Court Hamburg (LG Hamburg, decision of 8 October 2010, case reference 308 O 710/09).In a press release the Hamburg court informs that it decided that a 16 year old file-sharer was only liable to pay damages of 15 Euros for each title he had illegally shared online. In this case the overall damages amounted to 30 Euros for two songs he had offered illegally on an Internet file sharing site. The claimant, who owned the distribution rights for these songs, had asked for damages of 300 Euros per title, which appears to be a fairly common amount usually awarded for such damages.
When deciding the amount of damages to be awarded - which had to be based on what a respective licence for these songs would have cost ("fiktiver Lizenzvertrag") - the court took into consideration that titles in question were songs of well-known artists (at least well known in Germany: the song "Engel" by Rammstein and the song "Dreh‘ dich nicht um“ by German singer song writer Westernhagen. However, the court also took into consideration that the songs were already several years old when they were offered online. As such, the court assumed that there was little demand for the songs. Furthermore, the court held that it was important that the songs had only been offered for a short time and the court hence assumed that each song had only been downloaded about one hundred times.
The Hamburg court further held that the father of the 16 year old was not liable for copyright infringement. While he had allowed his son to use the Internet access and was to regarded a "disturber" ("Störer") and had a duty of care ("Überwachungspflicht") concerning the Internet access that was used to commit the copyright infringing acts under the German principle of disturber liability. However, the father had not himself committed copyright infringement and as such was not liable for damages.
This Kat will certainly not go as far as to say that copyright infringement in German has just become a little bit cheaper, since every case very much will turn on its specific facts, but this decision by the Hamburg court nonetheless gives a good indication that the German courts appear to adopt a rather pragmatic real life approach when assessing the level of damages to be awarded.
The Hamburg court further held that the father of the 16 year old was not liable for copyright infringement. While he had allowed his son to use the Internet access and was to regarded a "disturber" ("Störer") and had a duty of care ("Überwachungspflicht") concerning the Internet access that was used to commit the copyright infringing acts under the German principle of disturber liability. However, the father had not himself committed copyright infringement and as such was not liable for damages.
This Kat will certainly not go as far as to say that copyright infringement in German has just become a little bit cheaper, since every case very much will turn on its specific facts, but this decision by the Hamburg court nonetheless gives a good indication that the German courts appear to adopt a rather pragmatic real life approach when assessing the level of damages to be awarded.
The court's press release can be accessed here.
