In diesem Artikel erfahren sie alles über Abmahnungen von Waldorf Frommer. Stand der Informationen: 08/2018.
In this article we inform you about warning letters by Waldorf Frommer. (also known as “cease-and-desist”-letters)
Did you receive a warning letter by Waldorf Frommer?
The essentials in brief:
Waldorf Frommer Rechtsanwälte Waldorf Frommer Rechtsanwälte is the biggest German law office, which acts on behalf of their clients to enforce copyright infringement claims. Among their clients are Twentieth Century Fox Home Entertainment, Warner Bros. Entertainment, Studiocanal, Universum Film, Sony Music, die Constantin Film Verleih GmbH, Tele München Gruppe oder die Majestic Filmverleih GmbH. Additionally, Waldorf Frommer Rechtsanwälte bring their claims before courts. Respective hearings before the Amtsgericht or Landgericht Frankfurt a.M. (Local Court or District Court Frankfurt a.M.) take place almost weekly.
Recent warning letters by Waldorf Frommer 2018
In former years and in 2018 alike, Waldorf Frommer send warning letters (Abmahnungen) in behalf of different clients.
Almost every day further movies are added to the list of titles Waldorf Frommer Rechtsanwälte is issuing warning letters for.
Currently, the law office sends with the reference “Zahlungsaufforderung vor Klageerhebung (“Payment request prior legal action”)“. There is no general answer to the question, whether the threat of bringing a lawsuit has to be taken seriously in each and every case. The fact is, Waldorf Frommer Rechtsanwälte bring legal proceedings before several courts. I provide legal consulting and representation on a flat fee basis.
Waldorf Frommer Rechtsanwälte raised the damages claimed for copyright violations of movies to € 700, leading to overall costs in the amount of € 915.
In case you received a warning letter by Waldorf Frommer Rechtsanwälte, I can offer you to provide the following support:
2. Handling of the warning letter by a lawyer
3. Handling of several warning letters incl. preventive declarations to cease and desist.
The choice is yours!
Content of warning letters by Waldorf Frommer Rechtsanwälte
Warning letters by Waldorf Frommer Rechtsanwälte always follow the same structure. The first page of the letter basically states the responsible consultant at Waldorf Frommer, the date on which the letter was written, and the docket number of the case at the law office Waldorf Frommer Rechtsanwälte. The docket number usually starts with the year in which the alleged copyright infringement has been discovered. (2018 = 18) followed by the sequence of letters “PP“ and ends with a serial number.
Waldorf Frommer claims the illegal use of a file-sharing service.
If the reference line reads as follows:
“-Illegales Tauschbörsenangebot über Ihren Internetanschluss-” The first paragraph of the letter by Waldorf Frommer outlines that the reason for the letter at hand is that Waldorf Frommer alleges that a copyright infringement via a file-sharing service has been conducted through your internet connection.
On the grounds of the alleged copyright infringement the lawyers of Waldorf Frommer deduce claims for cease and desist (a so called “injunctive relief”), information, damages and reimbursement of expenses. At the end of the first page or at least at the beginning of the second page the letter names which movie title, respectively which movie titles or series, are the subject matter of the warning letter. The law office Waldorf Frommer alleges that the named movie title(s) or series was (were) made available through your internet connection.
Investigation of the infringement
To investigate the copyright infringement Waldorf Frommer cooperates with the service provider ipoque. The law office Waldorf Frommer also refers to the investigation conducted by ipoque in any trials l became aware of. According to current information, ipoque developed a client, that acts like a common user and participates in the regular data traffic of the file-sharing service. The approach to conduct this investigation can be associated with high process costs, because losing party bears the costs of such an investigation (€ 5.000 and more). Many courts applied such investigations before and assume that such investigations are reliable.
Investigative Data of Waldorf Frommer
Approximately in the middle of the second page the warning letter states the underlying investigative data. Such an entry may look as follows:
Family Guy – Beispielfolge, TV-Folge
Twentieth Century Fox Home Entertainment Germany GmbH
18.01.2018 16:05:28 bis 18.01.2018 16:07:34
Your contact data has been revealed by your internet access provider (mostly Deutsche Telekom AG or Telefonica). Waldorf Frommer Rechtsanwälte has to present a judicial authorisation the internet service provider to get this information. A judicial authorisation may be granted by the district court of the respective jurisdiction.
Claims by Waldorf Frommer
Within the warning letter, the lawyers of the law office Waldorf Frommer demand from the alleged infringer to submit a cease and desist declaration including a penalty clause and to pay a penalty for previous violations. Waldorf Frommer Rechtsanwälte attach an exemplary cease and desist declaration pursuant to the claims stated in the warning letter.
A cease and desist declaration is a promise to the holder of the copyright to refrain from performing a certain deed. To assure the sincerity of this promise, the cease and desist declaration must include the infringer´s obligation to pay an appropriate penalty for any breach of the promise.
Modification of cease and desist declarations
On internet forums, users often recommend to submit a modified cease and desist declaration, suggesting the (alleged) infringer to alter the declaration without professional advice. However, modifications could lead to invalidity of the declaration which may cause further costs. Therefore, we strongly advise against this approach.
Cease and desist declaration templates
Furthermore, there are several templates that can be found on the internet. As many of them are of dubious sources, we advise to be very cautious with them.
Tel.: 06151 – 73475176
To avoid unnecessary risks, leave out the following mistakes:
1.After browsing the internet, you decide to act on the anonymous advice of another internet user. Believing, the submission of a modified warning letter will solve the conflict.
Consequence: The declaration might be invalid. Moreover, the invalid declaration will establish a “positive presumption”. You are liable for the infringement. If Waldorf Frommer files a lawsuit they have a very good chance to win.
2. Ignoring the warning letter. (You do not submit a cease and desist declaration.)
Consequence: Again, this will establish a “positive presumption”. You are liable for the infringement. In case of a lawsuit, Waldorf Frommer Rechtsanwälte have a high chance of a judgment in their favour. The claim for cease and desist subsists. You have to fear the court will grant a preliminary injunction! This means legal costs and stress.
3.You are upset and decide to call Waldorf Frommer right away. You express that the sum claimed in the warning letter is way too high because you were totally dissatisfied with the movie.
Consequence: You confirmed the allegations against you which impairs your possibilities to defend yourself from the accusation. You are liable for damages, cease and desist, and reimbursement of process costs. Potentially, the owner of the internet connection is also liable according to the principle of “complicity”.
Question 1: Waldorf Frommer Rechtsanwälte reproaches me with participating in a file-sharing service for only a few seconds. How should I´ve been able to share a whole movie within this short period of time?
Answer: On page 2 of the warning letter, Waldorf Frommer Rechtsanwälte state a time period in which the film, the episode or a different kind of work allegedly was available via download. However, this time period is just a small part of the evidence Waldorf Frommer collected. Mostly, further pieces of evidence exist. From a legal point of view, it is important to note that the law office Waldorf Frommer Rechtsanwälte claims the infringement of § 19a UrhG. This so-called “right to make a work available to the public” is already infringed once a work was available for a few seconds.
Answer: To prove their allegations, Waldorf Frommer Rechtsanwälte use investigations conducted by a company called ipoque as evidence. Since the law office Waldorf Frommer Rechtsanwälte has already been active for years and most courts have determined the investigation process by ipoque already, courts deem the claim of the law office Waldorf Frommer Rechtsanwälte, that the investigations made by ipoque are accurate, to be trustworthy. Therefore, I would not recommend to consider a claim that these investigations are unreliable. The costs for an opinion of an expert on the investigation process could be easily amount to 5.000 € and more. Usually, this factor is not the crucial point in proceedings against Waldorf Frommer.
Answer: Yes, the law office Waldorf Frommer Rechtsanwälte conducts legal proceedings at different places of jurisdiction. On this website, we will inform you about your options to prevent a lawsuit.
Question 4: Mr. Kramarz, how can you assist me, in a case where I received a warning letter by Waldorf Frommer?
Answer: The allegation by Waldorf Frommer, that copyrighted material has been made available through your internet connection, does not necessarily indicate that you are liable for the infringement. The German law applies a differentiated approach. If you are accused of participation in a file-sharing network liability does neither depend on wilful or negligent conduct nor the fact that you noticed that you were participating in a file-sharing network or not. The Bundesgerichtshof (Federal Supreme Court of Germany) demands a high degree of care in dealing with copyrighted materials. Thus, German law does not require the suing party to prove culpability (i.e. wilful or negligent conduct) of the defending party to pursue claims of copyright infringement.
The first inquiry to the question of liability is whether you personally did participate in the file-sharing website. If this is not the case, but, e.g. someone else living in your household with the right to use your internet connection, the case may differ. The Bundesgerichtshof took a differentiate view in this issue.
But I also will be able to give legal advice, in a case where you personally caused the warning letter – either with the objective to reject the claims or to reduce the damages. Feel free to contact me in a case where you received a warning letter by Waldorf Frommer. I will represent your interests on a flat fee basis.
The current legal situation regarding warning letters by Waldorf Frommer
The lawyers of the law office Waldorf Frommer Rechtsanwälte pursue copyright claims in behalf of different clients. In addition to film companies such as Twentieth Century Fox Home Entertainment GmbH, Warner Bros. Entertainment GmbH, Studiocanal GmbH, Universum Film GmbH, Sony Music or the Tele München Gruppe Waldorf Frommer acts in behalf of owners of image copyrights such as the Stockfood GmbH or Getty Images.
How file sharing networks work
Within the warning letters, lawyers of Waldorf Frommer Rechtsanwälte demand claims on the basis of an infringement of copyright. If you have received a warning letter claiming the unauthorised distribution of a film, music or a TV series by Waldorf Frommer, their claim is that you made the respective work available in a file sharing network. In particular they allege, that you violated the right to make the respective work publicly available according to § 19a UrhG. This means that you allegedly violated a usage right of a company that owns the right to make the respective work publicly available (e.g. companies like Twentieth Century Fox, Warner Bros. Studiocanal, Universum, Sony, Tele München or the Studiocanal).
Clients of Waldorf Frommer
- Twentieth Century Fox
- Warner Bros.
- Studiocanal GmbH
- Universum Film
- Sony Music
- Constantin Film
- Tele München Gruppe
- Majestic Filmverleih GmbH
- Telepool GmbH
No way! All I did was streaming a movie! Isn´t streaming legal?
Whether streaming of copyrighted works via the internet without consent of the rightful copyright owner is legal or not is an issue that is as yet undecided. However, this issue is irrelevant with regard to the accusations raised by Waldorf Frommer.
Through the warning letters sent by Waldorf Frommer, the law office claims the upload of a movie, a TV show or music. Waldorf Frommer does not intend to prosecute any download by the owner of the internet connection.
To participate in a file sharing network, the user has to download and install a client software. The most common software is called “BitTorrent”. There are further client programs, which allow the use of the BitTorrent-protocol, too. One of these software solutions called “µTorrent” is also available for smartphones based on the Android operating system.
If you use a program that employs the BitTorrent-protocol any data you download will be made available to others, i.e. you the data is made available by you. Thereby, the right to make a work available to the public is affected.
With the program “Popcorn Time” it is even possible to use and offer files via the BitTorrent-protocol during the downloading process. Thus, borders between down- and upload and mere streaming begin to blur. However, the use of “Popcorn Time” also implies the distribution of files.
The law office Waldorf Frommer does not investigate the internet connection participating in the distribution of movies, tv series or music by themselves. According to the information in the warning letter, a company called ipoque is responsible for the investigation of the respective internet connections. Subsequent to the collection of investigations by ipoque and information provided by internet providers about the owner of the internet connection the law office Waldorf Frommer sends warning letters on behalf of their clients claiming forbearance, reimbursement of costs, and damages.
Liability for the infringement of copyrights through the use of file sharing networks
If an investigation led to the result that an internet connection was used for distributing files that, however, does not imply that the owner of the internet connection is liable for the infringement. Usually, the person who did an unlawful act (offender) is liable for the infringement. Nevertheless, in cases where certain strict requirements are fulfilled, a person may be liable for the failure to act, e.g. to fulfil specific duties.
In 2010, the German Federal Court of Justice (BGH) ruled in “Sommer unseres Lebens” that the infringement via an internet connection is prima facie evidence that the owner of the internet connection is liable for infringement.
„Wird ein geschütztes Werk der Öffentlichkeit von einer IP-Adresse aus zugänglich gemacht, die zum fraglichen Zeitpunkt einer bestimmten Person zugeteilt ist, so spricht zwar eine tatsächliche Vermutung dafür, dass diese Person für die Rechtsverletzung verantwortlich ist.“
BGH, judgement of 12 May 2010, I ZR 121/08
Prima facie evidence means that circumstances suggest that the owner themself is liable.
Therefore, the owner of the respective internet connection has the burden of proving that someone else is liable for the infringement.
„Daraus ergibt sich eine sekundäre Darlegungslast des Anschlussinhabers, der geltend macht, eine andere Person habe die Rechtsverletzung begangen.“
BGH, judgement of 12 May 2010, I ZR 121/08, paragraph 12
Notwithstanding that, the owner of the internet connection does not have to identify the actual infringer. Moreover, the owner is not required to deliver specific information about the use of the internet connection. The burden of proof is already met if the owner contends that other individuals and, if possible, which individuals were able to use the internet connection and possibly caused the infringement. To this extent, the owner of the internet connection is obliged to make reasonable inquiries.
„Die sekundäre Darlegungslast führt weder zu einer Umkehr der Beweislast noch zu einer über die prozessuale Wahrheitspflicht und Erklärungslast (§ 138 Abs. 1 und 2 ZPO) hinausgehenden Verpflichtung des Anschlussinhabers, dem Anspruchsteller alle für seinen Prozesserfolg benötigten Informationen zu verschaffen. Der Anschlussinhaber genügt seiner sekundären Darlegungslast dadurch, dass er vorträgt, ob andere Personen und gegebenenfalls welche anderen Personen selbständigen Zugang zu seinem Internetanschluss hatten und als Täter der Rechtsverletzung in Betracht kommen. In diesem Umfang ist der Anschlussinhaber im Rahmen des Zumutbaren auch zu Nachforschungen verpflichtet.“
BGH, judgement of 8 January 2014, I ZR 169/12, paragraph 18
In cases where infringement is carried out via an internet connection which provides WIFI, the provider of such WIFI may be held liable for interference. “Liability for Interference” (“Stoererhaftung”) applies to providers who did not secure their WIFI in accordance with the requirements established by German jurisdiction.
Liability for a third-party individual that used the internet connection is applicable if access via WIFI is provided by the owner of the internet connection and the WIFI was not sufficiently protected from unauthorized access. To determine the sufficient degree of protection, the usual standard of security at the time of installation has to be taken into account.
In 2010, the BGH ruled on that point:
“The obligation to test the access protection of a WIFI access refers to the market standard for routers for private (non-commercial) purposes at the time of purchase of the router.”
This includes that the WIFI is encrypted and a password is required to get WIFI access. As some producers of routers supply their routers with a pre-assigned password, which is indicated on the router, it is questionable, whether such a password fulfils the requirements established by the BGH.
Concerning this issue, the BGH ruled in “WLAN-Schlüssel” (judgment of 24 November 2016, I ZR 220/15) the use of an individual key to protect the WIFI access is a sufficient measure. Therefore, it is irrelevant whether the key was pre-assigned by the producer of the router and/or the key is indicated on the router.
In cases where a minor might be liable for the infringement the lawyers of Waldorf Frommer would refer to § 832 BGB. According to this provision, parents may be liable for the unlawful behaviour of their children under specific circumstances.
However, parents are not liable for an infringement by their child, if they instructed their child about the possibility of copyright violation in a way and to an extent which is appropriate for the mental maturity of the child. Nevertheless, it has to be noted that the child remains liable even though the parents are not liable. (BGH, judgement of 15 November 2012, I ZR 74/12, paragraph 25, „Morpheus“)
What should I do if I have received a warning letter by Waldorf Frommer?
Please bear in mind: The lawyers of Waldorf Frommer are absolute professionals in the area of copyright infringement cases! You won’t reach a point where the law office Waldorf Frommer will waive any of their claims voluntarily.
I have a long-lasting experience in the field. Let me handle the issue right from the start. This saves time, stress and you can rest assured that a professional will deal with the case.
Recent Judgements Regarding Warning Letters by Waldorf Frommer
Meanwhile, the BGH had to deal with filesharing issues in several lawsuits. The law office Waldorf Frommer is right as they state in their warning letters that the right to investigate copyright infringement ends at “the doorstep of the house”:
Judgement of 20.07.2018 – Dead Island – I ZR 64/17
In this case, only an official press release about the judgement has been issued so far. Therein, the BGH outlines the key elements of the judgement. The abstract states that the defending party provided access to five public WiFi Hotspots and two so-called Tor Exit Nodes. According to the press release the BGH considered that the owner of the WiFi is liable for interference and ordered him to reimburse the suing party for their attorney’s costs.
Special attention should be payed to this judgement as it is the first decision wherein the BGH applied the amended TMG (German Telemedia Act). Through this amendment, the German legislator set new guidelines regarding liability for interference, excluding the possibility to claim forbearance.
Judgement of 06.12.2017 – Konferenz der Tiere (“Animals United”) – I ZR 186/16
On 6 December 2017 the BGH ruled that a person participating in a filesharing network who offers file fragments which are copyrighted is jointly with others deemed an accomplice and liable for the infringement of the right to make a work available to the public.
“Der Teilnehmer einer Internettauschbörse, der Dateifragmente in der Tauschbörse zum Herunterladen anbietet, die einem urheberrechtlich geschützten Werk zuzuordnen sind, das im zeitlichen Zusammenhang mit der beanstandeten Handlung in der Tauschbörse zum Herunterladen bereit gehalten wird, haftet regelmäßig als Mittäter einer gemeinschaftlich mit den anderen Nutzern der Internettauschbörse begangenen Verletzung des Rechts zur öffentlichen Zugänglichmachung des Werks.” (amtlicher Leitsatz)
Order of 27.10.2017 by the District Court Frankfurt am Main – 2-03 S 12/17
In their indicative court order the District Court state their position regarding the substance of the burden of proving for the owner of the internet connection. According to the Court, it is not required to state the name of family members. However, if one withholds the names of family members who had access to the internet connection the Court may deem this as a frustration of evidence. Therefore, the owner of the internet connection does not meet their burden of proving and will be found liable by the Court.
Judgement of 30.03.2017 – Loud –
On 30 March 2017 the BGH defined the substance of the burden of proving for the owner of the internet connection in “Loud”. The Court ruled that parents are obliged to represent the name of the child if the child admits to be responsible for the infringement. (BGH, judgement of 30 March 2017, I ZR 19/16, paragraph 24) The defendant has to give notice about who used the internet connection at the relevant time and the outcome of the defendant’s investigation regarding the copyright infringement claim. (BGH, judgement of 30 March 2017, I ZR 19/16, paragraph 15)
Even though there is no obligation to intra-familiar investigations, the burden of proof requires the defendant to represent the name of the family member who admits to be responsible or the defendant otherwise gets to know which family member is responsible for the infringement:
“Hat der Anschlussinhaber jedoch im Rahmen der ihm obliegenden Nachforschungen den Namen des Familienmitglieds erfahren, das die Rechtsverletzung begangen hat, muss er dessen Namen offenbaren, wenn er eine eigene Verurteilung abwenden will.”
BGH, judgement of 30 March 2017, I ZR 19/16, paragraph 26 ff.
Judgement of 06.10.2016 – Afterlife –
In another judgement regarding the infringement of the copyright in the movie “Resident Evil: Afterlife 3D”, the BGH ruled that ownership of an internet connection is no prima facie evidence for liability for copyright infringement. It is not the custom course of events that the owner of the internet connection is responsible for the copyright infringement. (BGH, judgement of 06 October 2016, I ZR 14/15, paragraph 20)
Moreover, the substance of the burden of proving is limited by the protection of marriage and family. According to the Court, it is infeasible for the owner of a private internet connection to document the internet usage of their spouse to meet their burden of proof. Furthermore, it is also infeasible to require the defendant to search the computer of their spouse for the existence of filesharing software. (BGH, judgement of 06 October 2016, I ZR 14/15, paragraph 26)
BGH judgements of 12 May 2016
Usually, the amount claimed by the warning party includes damages and the refund of attorney’s fees.
In most filesharing disputes, the so-called “licence analogy”-method is applied to calculate the amount of damages. This means that the infringing party has to pay the amount which an honest licensee would have paid for the use of the copyrighted work.
Attorney’s fees are based on the “Rechtsanwaltsvergütungsgesetz” (RVG) (an act defining the compensation for services of lawyers). According to the RVG, the attorney’s fees are depending on the amount in controversy. This term is used to denote the amount at stake in a lawsuit.
In one of the judgements of 12 May 2016 (I ZR 86/15), the BGH substantiates the conditions under which the owner of an internet connection is liable for copyright infringement through the internet connection. According to the Court, the owner of the internet connection is not liable on the basis of Liability for Interference, even if the infringement is committed by guests or roommates being of legal age. To oblige the owner of an internet connection to instruct adult guests or roommates would be unreasonable. (BGH, judgement of 12 May 2016, I ZR 86/15, paragraph 22)
In the decision “Everytime we touch” (BGH, judgement of 12 May 2016, I ZR 48/15) the BGH defined the extent of the owner’s burden of proof. The Court ruled that burden of proving shall be fulfilled only where the owner’s contentions provide comprehensible information about which persons come into question to be solely responsible for the infringement without knowledge and involvement of the owner. The owner has to present information that the behaviour, knowledge, and skill of the other users show that an infringement conducted by them is not unlikely. (BGH, judgement of 12 May 2016, I ZR 48/15, paragraph 42)
BGH-Judgements in 2015
In 2015, the BGH dealt in three decisions with filesharing issues.
In the judgement of 11 July 2015 (I ZR 7/14), the BGH revisited the obligations of parents, who allow their children to use the internet. The Court upheld their decision of 15 November 2012 (I ZR 74/12). Accordingly, parents fulfilled their duty of parental supervision according to §§ 832, 828 BGB if they have instructed their children about the illegality of filesharing networks and forbid them the use of such networks.
If parents cannot proof that they have fulfilled their responsibility they are liable on the basis of breach of duty of supervision. The damages payable can be calculated according to the so-called licence analogy method.
In another judgement the BGH determined that it is significant evidence for ownership in a music title if a label a database lists the label as the distributor of the respective music title.
According to the BGH, the investigation process is sufficiently documented by screenshots and accompanied by testimony of an expert witness of the investigating company.
Moreover, the infringed party does not have to establish that the allocation mechanism of the access provider always assigns the IP addresses properly. (BGH, judgement of 11 June 2015, I ZR 19/14)
In the last of the three judgements of 2015, BGH, judgement of 11 June 2015, I ZR 75/14, the BGH dealt with the question under which circumstances the owner of an internet connection fulfils their burden of proof which leads to an exemption of liability. The Court ruled that it is not sufficient if the owner only contends that other persons who are living in the same household had the “theoretical” possibility to use the internet connection. According to the BGH, the owner is required to present specific information about which persons had access to the internet connection at the time of the investigation.