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hhvgoetz
hhvgoetz, Rechtsanwalt, LL.M.
Category: German Law
Satisfied Customers: 2790
Experience:  LL.M. in International Trade Law (Newcastle upon Tyne, UK)
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I have received a letter from Waldorf-Frommer asking me to

Customer Question

Hello,
I have received a letter from Waldorf-Frommer asking me to pay around 1000 euros or so for downloading a movie on BitTorrent, much like a case that you helped another customer with before I was also sent a letter from Waldorf-Frommer concerning a movie by Twentieth Century Fox Home Entertainment Germany GmbH. I have done some research on my own and I have seen that many people seem to be solving their problems by sending these modifizierte Unterlassungserklärung letters. Is this the appropriate action for me to take as well and if it is should I just copy and paste what you wrote to the other customer, fill it out appropriately, and send it through the mail back to Waldorf Frommer or how should I go about this issue the best?
Thanks so much for the help
Submitted: 4 months ago.
Category: German Law
Expert:  hhvgoetz replied 4 months ago.

Hi,

actually, (in contrast to earlier times) there is not much to modify at the current draft "Unterlassungserklärung" sent by Waldorf.

However, you should add, that you declare the Unterlasung "ohne Präjudiz für die Sach- und Rechtslage, jedoch gleichwohl rechtsverbindlich".

A total of 1000 Euros is only OK, if it is a faily new movie a whole load of music.

In case of any doubt, check with a local lawyer who will take negotiations for around 200 Euros (ask before) which will usually pay off for you.

Regards

Customer: replied 4 months ago.
Do you have any past experience with a case just like this? If so how was it resolved? Also what would happen if I just didn't do anything
Expert:  hhvgoetz replied 4 months ago.

I have quite a lot experience with these cases.

If you don't do anything, you will have higher litigation costs as Waldorf will also sue you for the "Unterlassungeerklärung" and not only for the costs of the "Abmahnung" and damages.

If there were other people in the house who could have operated BitTorrent, especily children, you may get off cheaper in a lawsuit, but only with an experienced lawyer.

If the defence is only build on argueing the amount of damages for the movie, it depends a lot on the actual court and judge you end up.

The worst thing is to do nothing as it is the most expensive way. After sending the modified "Unterlassungserklärung" (BEFORE, make sure, that Bittorrent ist not used illegally any more in your household), you are still free to argue about the costs and the damages or just pay.

Regards.

Customer: replied 4 months ago.
Ok so the letter is addressed to my 79 year old Grandfather who lives here in Germany with My 75 year old Grandmother, both of them barely know how to use a computer at all much less know how to torrent or what a torrent even is. Also they were not even home at the time/date that the torrent was downloaded and they can prove it with many witnesses who saw them that day. There was a visitor here from America and he may be the reason for this download. He has since left and gone back to America.Are they going to be held accountable for his actions? Should we put all this in the letter that we send them with the modified "Unterlassungserklärung?
Should we call Waldorf Frommer and tell them this? We all just want to make sure we do the best thing here and that my grandparents don't have to pay for something that they didn't do.
Thank you for the quick responses
Expert:  hhvgoetz replied 4 months ago.

The more secure way (if it can be assured that no illegal uploads will be done again) would be to send the mod. Unterlassungserklärung and explain the case.

In this case it would also be possible not to sign the Unterlassungserklärung. The risk of costs is higher (if the court does not believe in the story about the visitor).

There may also be tactical reasons to hold back the exact address of the visitor until Waldorf decides to go to court.

However, it will be most likely necessary to disclose the person and address of the visitor at some point.

I highly recommend to involve a local lawyer. It will pay off in your case.

Regards

Customer: replied 4 months ago.
Ok so we really don't want to have to go to court if you don't absolutely have to. As you said the most secure way would be to write them the Unterlassungserklärung and explain to them our case. That is what we would like to do. Although we have no idea what or how to write it. My grandfather does not want to sign for anything that he didnt do but he can sign for garunteeing that nothing will be downloaded or uploaded in the future. Could you please tell us exactly what we should write to Waldorf for our case? and then we will fill it out appropriately (my grandfathers name/address etc.)
Thank You
Expert:  hhvgoetz replied 4 months ago.

Then he should just explain it the way you did and name the person who is responsible with address and therefore cannot sign the Unterlassungserklärung as he is not responsible and also didn't know that the visitor would illegally upload anything, nor had any suspicion that he would do so.

Tell your father that he ist only rising the risk of cost when not signing an "Unterlassungserklärung". In order not to admit anything I recommended o add "ohne Präjudiz für die Sach- und Rechtslage, jedoch gleichwohl rechtsverbindlich".

If you need someone else to fix exactly what should be written, please contact a local lawyer. Check price before.

This is something which should be done after having checked all the documents and being able to continue negotiations with Waldorf.

This is not a recommendable issue to do by yourself. Waldorf probably won't accept this and may sue your father.

At court it is important that your father can prove that he informed Waldorf that person X is responsible.

Regards

Customer: replied 4 months ago.
Ok. Do you think that it would be a good idea to call Waldorf and talk to them over the phone and maybe explain to them everything( that thrse are older people who dont know anything and that it was a guest from America who has since gone back etc.) and that we promise to never use Bittorrent or anything like that again. Do you think that we would be able to get the price down or get them to remove it completely? Or is this a bad idea alltogether?
Expert:  hhvgoetz replied 4 months ago.

Bad idea, complete waste of time. Sometimes, a lawyer can get a few 100 Euros "discount" via phone depending on the content uploaded, but quite unlikely with Waldorf. I would say impossible if an Unterlassungerklärung is not signed.

Write by yourself (making sure, the necessary info about the repsonsible person is provided before Waldorf goes to court or ask a local lawyer to do so and relax a bit more.

I'm sorry.

Customer: replied 4 months ago.
Ok so we wrote the Unterlassungserklärung. Should we email to them or send it back by regular mail?
Expert:  hhvgoetz replied 4 months ago.

Yes, if you can still match the deadline. If not, give them a call to tell them, that it's on the way or send a copy in addition by fax.

Regards.

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