In a recent judgement dated 18 February 2016 (case reference: 25b C 342/15), the Hamburg District Court ruled on the scope of liability of a retailer who sold unauthorized audio-visual DVDs on the Amazon internet platform. The court affirmed an obligation to bear costs regardless of fault and based its decision on the requirements of the underlying claim for injunctive relief. Since a claim for injunctive relief under copyright law is not dependent on the fault of the infringer, the claim for reimbursement of the warning costs based on this can only be asserted regardless of fault.

Bootleg DVDs on the Internet

The term bootleg refers to unauthorized sound recordings and unauthorized recordings of an artist’s performance. These recordings are usually made at concerts or other performances. The recordings are made without the consent of the author. If such DVDs or LPs are offered for sale on the Internet, this action violates the exclusive distribution right of the author. The consequence for the retailer is usually a warning letter with a request to submit a cease-and-desist declaration with a penalty clause and to pay the costs of the warning letter. The reimbursement of the warning costs is based on Section 97a para. 3 UrhG and in any case also includes the reimbursement of reasonable legal fees incurred by the entitled party.

Liability of the retailer even without knowledge

A claim for injunctive relief under copyright law is governed by Section 97 para. 1 UrhG. In contrast to a claim for damages under copyright law, this claim does not require fault. This means that the infringer does not have to have acted intentionally or negligently. The dealer’s assertion that he did not know that the recording offered was a so-called bootleg does not justify a limitation of liability. In the event of a claim for injunctive relief, the Hamburg District Court assumes that the associated warning costs can also not presuppose fault.

Limitation of strict liability

A limitation of liability is only possible if the recognizability of a bootleg can only be determined through extensive research and this represents an unreasonable burden for the retailer. This is the case if the retailer, after exhausting all possibilities, cannot find any evidence that it is an illegal copy. If, on the other hand, the recognizability is visible or can be easily determined, the retailer cannot invoke the unreasonableness of the verification. Whether a bootleg is recognizable can depend on various indicators. Decisive factors include the presentation of the picture cover or the quality of the sound or picture sequences. If no official companies are named on the cover, it can be assumed that the DVDs have been marketed without the consent of the copyright holder and are therefore illegal.

Considering the violation of media freedom

Strict liability must not disregard the constitutional protection of a media retailer. The freedom of the media under Art. 5 para. 1 S.2 GG grants the retailer protection under fundamental rights, which must always be taken into account when weighing up the interests in question. The Hamburg District Court considers a constitutional restriction of strict liability to be necessary if the retailer can only determine that it is a bootleg product with extensive research. A restriction for cases in which it is possible to recognize an illegal product is not provided for. In the latter case, the retailer is also liable to a reasonable extent, regardless of fault, for the warning costs incurred. A strict inspection of the product is therefore always required before the sale. If the seller fails to carry out such an inspection, there is a serious risk of being asked to pay afterwards.