Calculation basis for damages challenged the higher regional court of Cologne has currently in proceedings (file number: 6 U 67/11) in connection with a cease and desist letter for file sharing, a significant note decision adopted. In this decision, which indicates that the OLG Cologne is revising the earlier assessment to the calculation of damages against file sharers. Calculation basis is challenged so far the tariff Board W are taken the music admonition from (or film) industry and the courts I. GEMA for the assessment of damages in these cases. Then arises as minimum license according to this tariff, that is a payment of 100.00 for up to 10,000 calls to make. Now the judges however have argued, that this fare is not the actual facts facts about file-sharing. Here it would rather apply a damage, which would be the rights holders as a result, that protected works in an unknown time downloading available has been made. Therefore be not the so-called tariff VR-W I, but the tariff 5 applicable VR-OD, who has the use of individual titles by download to the subject.
Herein lies but a serious difference, because instead of the minimum sum of 100,00 per title this tariff per successful access sees only an amount of 0,1278 ct. before! Note decision of the Oberlandesgericht Koln, another for the filesharer very favourable point of view as a hint to the wailing music publisher is given: “it will be to consider further the following: setting the title in the Exchange Borde has allowed although – as the the starting point applicable to applicants – an incalculable number of involved access to these, there are claims for damages but also against all those (unless culpably acting) other unauthorized users in turn.” A – for this reason at least theoretically possible he shining – multiple assertion of the same damage without crediting the already made compensation of one of the wrongdoer may be unjustified in the approach. Also This point of view is indeed against the basis of the GEMA tariff favored by the applicants, because this basis without further up to the 10,000 title.” (OLG Cologne – 6 U 67/11) Was abandoned here now the wailing music publishing house, in addition to present to the extent of the damage. This assessment could lead in regard to the fixing of licence fees and value in terms of file sharing to serious changes of the OLG Cologne, currently is however not yet, how this will affect the current process. Lawyers Dr. Mahlstedt & partners – your law firm in Bremen. For information, see