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Warning Letter U + C on behalf of FDUDM2 GmbH for Erotic Movies

The law firm U+C (Urmann + Collegen) is still issuing cease and desist letters (Unterlassungserklärung) on behalf of FDUDM2 GmbH. These pertain to the alleged providing of public access “öffentliches Zugänglichmachen” to the erotic movie TOO SMALL TO TAKE IT ALL 3.

All persons concerned are charged by U+C with having supplied third parties with a free download of the movie TOO SMALL TO TALKE ALL 3 by way of a file-sharing site.

As usual, U+C demand on behalf of the owner of the rights, i.e. FDUDM2 GmbH, that a life-long binding declaration to cease and desist is signed, which can be enforced by penalty, and payment of a lump fee for the unauthorized providing of public access of said movie.

 

Do not sign the pre-formulated declaration to cease and desist!

 

The cease and desist letters sent by the law firm U+C contain a pre-formulated declaration to cease and desist. We strongly recommend NOT to sign the declaration, because it is phrased in a way that solely benefits the owner of the rights, i.e. the FDUDM2 GmbH. Through the use of a different wording the legal consequences can be changed in your favor. Often not only a single erotic movie was downloaded and thus in many cases the need exists to prevent further cease and desist letters for other movies from other law firms representing other rights owners. It may make sense to draft a so-called preventive declaration to cease and desist (vorbeugende Unterlassungserklärung).

 

Do not pay the stipulated fee without reviewing it!

 

In many cases the amount indicated is not justified. For instance, compensation cannot be demanded from the subscriber, if he/she is not personally (“täterhaftlich”) responsible for the download. For instance, one must keep in mind the most recent decision of the Bundesgerichtshof on the subject of filesharing (05.10.2012, BGH I ZR 74/12). The court decided that parents are not automatically liable for any filesharing conducted by their minor children, if the children have been appropriately instructed.

 

Therefore, caution is advised with regard to the fee. Lump sums are not to be accepted. Instead, every case needs to be evaluated individually. The fee can often be significantly reduced with adequate argumentation.  Seek legal advice!

 

If the cease and desist letter is unjustified-or partially unjustified-the recipient can also counter the letter with a negative declaratory action (“negative Feststellungsklage”). This can be an effective measure especially in the case of porn movies, because the Landgericht München recently decided (29.05.2013, Az.: 7 O 22293/12) that porn movies are not protected by copyright law. Only “Werke”, i.e. personal, intellectual creations (persönliche geistige Schöpfungen), are protected by copyright law. This is lacking in the case of porn movies, according to the LG München. In this particular court case, even the copyright-related so-called “Laufbildschutz”, which does need to assume a “Werk” to be applied, was denied as well, because “Laufbildschutz” applies only, if the so called “Laufbilder” were published first in a foreign country and within the following 30 days in Germany. The latter could not be established by the owner of the rights. A breach of copyright could therefore not be claimed. We encourage you, again, to seek advice.

 

If you received a cease and desist letter from the law firm U+C (Urmann + Collegen) on behalf of FDUDM2 GmbH claiming the unauthorized utilization of the porn movie TOO SMALL TO TAKE IT ALL 3, please contact us.

Rechtsanwalt Florian Sievers, Fachanwalt für Urheber- und Medienrecht

Autor: Rechtsanwalt Florian Sievers, Fachanwalt für Urheber- und Medienrecht


Rechtsanwälte
Sievers & Kollegen

Kanzlei für Urheber- und Medienrecht, gewerblichen Rechtsschutz und IT-Recht

Sievers & Kollegen
Olympische Str. 10
D 14052 Berlin


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030 323 01 590

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