Rudolph Rechtsanwälte

Fachanwalt für Strafrecht
Fachanwalt für Steuerrecht

Copyright Law

Until a few years ago, copyright law was a very particular field of law that was only of interest to artists, publishers and collecting societies (e.g. the performing rights society). The era of the Internet has changed this. Nowadays, people are confronted with warnings regarding supposed breaches to copyright laws, people who had never before in their lives had anything to do with a lawyer or the Copyright Act.

Historically speaking, the Copyright Act is a relatively young law. In the century before last, the protection of intellectual property hardly played a role. When talking about money, jewellery or food, one can easily imagine how such an item is stolen. One can also easily imagine how one could defend oneself by locking the item up, for example.

In the case of so-called “intellectual property”, things look different. The “victim of theft” often doesn’t even notice that someone has made illegal copies of his protected works. Legally speaking, one can also say  when the victim of theft is confronted with a breach of copyright, it rarely leads to a loss of “enrichment”. 

At the same time, thanks to the modern and fast data circuits on the Internet nowadays, pirate copies of pieces of music, films, software or e-books can be distributed by the million within a split second. Gigantic amounts of data can be copied onto data carriers that need not be larger than a one Euro coin and be made available to be downloaded from all over the world. Films, texts, music and photos can be reproduced by the million via file sharing programmes or BitTorrent networks in a matter of seconds.

In the pioneering days of the Internet, many users found it so fascinating to be able to get almost any title via file-sharing sites such as Napster that t almost became a burning ambition to collect as many titles as possible, to then show them to other users. It is not uncommon to also be able to observe the phenomenon that involves a certain amount of pride when one copies software, for example, whose license costs several thousands of Euros – irrespective of whether one needs it or not.

For the e-generation, the free use of the virtual cultural goods is an attitude towards life. The operators of respective networks regard themselves as campaigners for a free flow of information and data. This spirit is also expressed by the fact that the forums are given names such as ThePirateBay. One sees oneself as David in the fight against the superior Goliath – the film and music industry controlled by international conglomerates.

Yet, the copying of music and films is by far not as harmless as it used to be the case when one used to record the Top 10 hits from the radio using a cassette recorder or burnt a CD with the beloved’s favourite songs.

Today, artists, music companies, publishers and distributors are seeing themselves confronted with more and more new challenges. Indeed, the Internet does offer undreamed-of possibilities for commercial use. Nowadays, it is not uncommon for artists who are still unknown, to become famous by spreading their songs via Twitter, YouTube or file-sharing sites.

On the other hand, it is practically impossible to prevent commercially produced films or music from being distributed all over the place. In April 2012, the Süddeutsche Zeitung wrote: “The protection of copyright equals the attempt to press toothpaste back into the tube.”

There are many prejudices and insecurities on the Internet. Whereas in the meantime, most users are aware that photos or texts for example on other websites may not simply be copied, one fast enters a grey zone in the course of other day-to-day activities.

Even the giants on the Internet – lead by Google and YouTube – have to deal with many unsettled legal issues. With the judgement dated 20.04.2012 (file number 310 O 461/10), Hamburg County Court decided that YouTube is liable under certain circumstances as a “disturber” for videos that users upload in violation of the Copyright Act.  

For the international conglomerates, such matters of dispute are usually only of interest for their negotiating position towards the entertainment industry (which is also interested in being present on the most important portals). Things look different for private users. If someone as a private individual receives a warning regarding a supposed violation of copyright, is usually confronted with the choice between the Black Death and cholera: He can either accept it and try to limit the amount of damage. But then, he will never find out whether he would have won the case, if he had engaged in a legal dispute. Or he goes in for the fight. This alternative often involves the risk of enormous costs.

The challenge for lawyers is to develop an ideal strategy with which risks are minimized without giving up too fast.

More on this topic (in German):

1) The right reaction to warnings

2) The Federal Constitutional Court on warnings regarding file-sharing

3) Lawyers‘ fees regarding warnings

4) Threatening letters after submission of a modified Notice of Cease and Desist 

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