Warning notice in connection with illegal streaming: Legal background and possible courses of action
With the continuously increasing use of streaming services on the internet, the number of warning notices issued due to alleged or actual copyright infringements has also risen. In particular, streaming of copyrighted content via unlicensed platforms is in the focus of rights holders and their representatives. A warning notice is a significant tool for the protection of intellectual property and may entail far-reaching legal consequences.
Fundamentals: Copyright Law and Streaming
The Copyright Act (UrhG) protects creative works such as music, films, or series from unauthorized use. While the use of legal streaming services that provide the appropriate licenses is permitted, viewing content on illegal platforms can involve legal uncertainties. It is important to note that merely watching a stream is legally different from downloading (filesharing). While with traditional filesharing a file is permanently stored and usually made available to other users, streaming typically results only in temporary copies being saved in the device’s working memory. Nevertheless, streaming can potentially constitute an infringement if a work is made publicly accessible against the rights holder’s consent.
Warning Notice: Content and Purpose
Content of a Warning Notice
A warning notice generally serves the purpose of achieving an out-of-court settlement and preventing further legal violations. It informs the recipient about an alleged violation of copyrights and demands the submission of a cease-and-desist declaration as well as the payment of damages and/or reimbursement of expenses (usually legal fees).
Warning notices in the context of streaming typically contain information about
- the alleged legal infringement,
- the underlying works,
- the violated exploitation right,
- a deadline for submitting a cease-and-desist declaration subject to penalty,
- a demand for reimbursement of costs.
Purpose of the Rights Holders
For rights holders, the pursuit of unlawful use of their works is paramount, particularly as a means of deterrence and prevention. The identification of alleged infringers typically takes place via IP addresses, which may be collected by platform operators or by court order.
Legal situation and current developments
Limits of liability in streaming
The jurisprudence concerning the liability of private users for illegal streaming is complex and controversially debated. In the past, the prevailing opinion was that the acts of reproduction involved in pure streaming (cache storage) could not be clearly classified as copyright infringements (§ 44a UrhG – transient reproductions). However, there are now more nuanced views, particularly in light of relevant decisions of the European Court of Justice (ECJ, Judgement of 26.04.2017, C-527/15). Accordingly, the deliberate streaming of content that is obviously unlawfully made available may constitute a copyright infringement and thus be subject to warning notices.
Requirements for ‘obvious unlawfulness’
A key factor for liability is whether the unlawfulness of the source is recognizable to the average user. The absence of an imprint, licensing details, or other features indicating an unlawful offering can lead to the assumption of intentional conduct. If there is any doubt or uncertainty, users should thoroughly inform themselves both in terms of content and technology.
Investigation procedure and data protection
The identification of individual users, especially by means of IP addresses, is subject to strict data protection requirements. Courts must assess in each individual case whether there is a right to disclosure against internet providers. Procedures to determine IP addresses and their data protection compliance remain subject to judicial review; the presumption of innocence applies.
Consequences of a warning notice in the event of illegal streaming
If a warning notice is issued for allegedly illegal streaming, recipients find themselves caught between significant payment demands and the question of their own liability. In most cases, the following are demanded:
- Submission of a cease-and-desist declaration subject to penalty,
- Reimbursement of legal prosecution costs pursuant to §§ 97a et seq. UrhG,
- (where applicable) compensation for damages due to missed license fees.
Unreserved acknowledgment of the claims may have far-reaching consequences, as a cease-and-desist declaration remains binding for several years.
Practical guidance for dealing with warning notices
Warning notices are legally significant documents and must never be ignored. It is always advisable to examine the factual and legal situation carefully – taking into account the individual case and any possible peculiarities. In particular, deadlines should be observed and any contractual penalty clauses evaluated with respect to their scope and reasonableness. Assessing whether a copyright infringement has actually occurred generally requires a thorough review of all circumstances.
Outlook and legislative developments
The topic of illegal streaming remains dynamic, especially with respect to technological developments and adjustments in copyright and data protection law. Legislators and courts strive to create a fair balance between the interests of rights holders and those of the general public. Ongoing proceedings can set new standards, whose impacts must always be assessed case by case.
Notice regarding the legal situation
The facts presented here reflect the status of legislation and case law at the time of writing. Various courts may reach different decisions in individual cases; thus, a high degree of case-by-case dependency exists.
Contact in case of legal questions
Should uncertainties or further clarification needs arise in connection with warning notices due to allegedly illegal streaming or the legal issues discussed here, the lawyers of MTR Legal are available as contacts. The law firm, which operates nationwide, handles complex matters in this and related areas of law and can discuss any questions in an individual setting.
