Waldorf Frommer attorneys are sending thousands of Cease and Desist letters per year to consumers for copyright infringements in filesharing networks like torrents. It´s very common that foreign visitors of Germany or their hosts / landlords receive these kind of copyright infringement letters as abroad the massive tracking of private users is not established. It is very common that they download TV episodes from Warner Bros. (like “Person of Interest”) or Twentieth Century Fox, some of the clients of Waldorf Frommer.
Since 2005 we have represented numerous clients – also from abroad – against Waldorf Frommer. You should be aware that the law office of Waldorf Frommer is the biggest and according to our experience also most professional law firm in that particular field. Waldorf Frommer have sued many consumers in the local court of Munich from 2010 on, but they face problems as legislator has changed place of jurisdiction with the law called “Gesetz gegen unseriöse Geschäftspraktiken” from 2013. This one has reduced lawyers fees and also made clear that Waldorf Frommer have to sue consumers who do not pay in time at the place they live.
What is it that Waldorf Frommer ask from you? Most of our foreign clients do not understand the complicated legal text they receive from Waldorf Frommer. The letters have always the same content, only specified to the individual case. Waldorf likes “copy und paste”.
They give you only very short time to react and set deadlines only very few days. Most of our clients think they have to react immediately, would otherwise risk disadvantages.
Defense tip Nr. 1: Do not hurry, do not call the opponent, as everything you tell them will be noted. Inform yourself, read our informations and discuss with us. Believe us: you definitively have the time …
I. Technical part
Waldorfs copyright warning letters start with a technical part. Under (1.) they explain to you which particular rightholder they represent (it is very often Warner Brothers or Twentieth Century Fox, sometimes also Sony Music or others). They tell you which work has been offered in a filesharing system (mostly torrents), and disclose to you the precise date, time with hours, minutes and seconds, IP-address and your providers. You will wonder how they got your (or your landlords) clear address as in the internet you only give you IP-address to websites you´re visiting. But in filesharing networks like torrents Waldorfs technical spy company Ipoque has installed spy clients, they track your IP-address when you download (and distribute) copyrighted works. Quickly they ask the responsible court to oblige your provider to hand over your clear address 8a procedure regulated in § 101 UrhG), you will find a copy of this mechanism attached to Waldorf Frommers letter which leads many of our clients to the wrong idea they were already sued by Waldorf which is in fact not true.
Is this technical investigation correct, many of our clients ask? We believe that yes, as we had validated that particular point in several court procedures we did against Waldorf. Expert witnesses gave evidence in all cases we have seen that Ipoques technique works, so we normally would not recommend to doubt that point. There are better ones to defend, we will show you this later.
II. Legal Part
Filesharing of protected works like TV episodes, movies or music is illegal according to § 19a UrhG (German copyright act), there are three legal consequences: Rightholders can ask for omission (§ 97 Abs. 1 UrhG) which is in Waldorfs letter the so called “cease and desist declaration”, damages (§ 97 Abs. 2 UrhG) and refund of lawyers fees (§ 97a UrhG). But the details are very complicated.
So in general you can divide Waldorf Frommers letters in two parts:
(1) Cease and Desist Declaration
They ask for a so called “cease and desist” declaration (“Unterlassungserklärung”) which you will find at the end of the letter. This constitutes a contract between you and the particular rightholder.
Defense tip No. 2: Do not sign this paper, as if you sign it, you declare yourself guilty, means you admit responsability even if you haven´t done the download. Better sign our modified cease and desist declaration which we would draft for you according to the needs of the individual case. It keeps the defense open.
(2) Payment: Damages and lawyers fees.
Since 2014 Waldorf Frommer ask for a payment of mostly € 815,00 in total (sometimes less, sometimes more). This consists out of damages (normally € 600,00) and refund of lawyers fees (normally € 215,00).
Defense Tip No. 3: Do not pay right now, Waldorf is asking a lot of money for a single download, it might be we can win the case for you and we have seen also cases where Waldorf has set two or three cease and desist letters in a row, this can get expensive for you.
Defense Tip No. 4: You should note circumstances what has happened on your account. Can you prove you are “innocent” that third persons were responsible? Can you prove you were not at home at that day and time? The German High Court (BGH) has ruled in the Bearshare decision and in the Morpheus decision that there is no “breach of duty of care” if other adult people or kids have produced the downloads.
Discuss that important aspect of the case with us in detail: We offer a first legal opinion on your case free of charge. It can help you to win the case.