As a lawyer who represents many agencies and influencers, I often have to deal with legal issues relating to YouTube.
A recent ruling by the Regional Court of Cologne shows that a warning letter is necessary in the event of copyright infringements before injunction proceedings are initiated in order to be reimbursed for the costs of the proceedings, even if the infringer immediately makes an acknowledgement during the proceedings.
Background to the case
The case concerned a video clip that contained excerpts from a piece of music protected by copyright.
The rights holder had initially used the YouTube complaint procedure to have the video removed.
YouTube complied with this request and blocked the video.
The rights holder then directly initiated injunction proceedings without warning the uploader beforehand.
In the injunction proceedings, the uploader immediately issued an acknowledgement.
## The Regional Court of Cologne ruled that the rights holder must bear the costs of the injunction proceedings himself, as he had not warned the uploader before initiating the proceedings.
The grounds for the judgment state:
The warning was not dispensable in the present case.
[…] Without a prior warning, the applicant would have been liable for costs as the losing party pursuant to Section 93 ZPO if the defendant had immediately acknowledged the asserted claim.
The court clarified that a prior warning is necessary in order to be able to pass on the costs of the injunction proceedings to the infringer, even if the latter immediately makes an acknowledgement during the proceedings.
The court continued:
The warning therefore serves not only to avoid court proceedings, but also to open up the possibility of an immediate acknowledgement at the expense of the defendant.
Conclusion
The ruling shows that a warning letter is absolutely necessary in the event of copyright infringements on YouTube before injunction proceedings are initiated.
This is the only way for the rights holder to ensure that they are reimbursed for the costs of the proceedings, even if the infringer immediately makes an acknowledgement during the proceedings.
For rights holders, this means that they should not forego a warning letter in order to secure their claims for reimbursement of costs.
Agencies and influencers, on the other hand, should be particularly careful when using third-party content on YouTube in order to avoid copyright infringements and expensive warnings.
If in doubt, it is advisable to obtain a legal opinion in advance.
This is because, as the Regional Court of Cologne has made clear, a warning letter is absolutely necessary before initiating injunction proceedings in order to be reimbursed the costs of the proceedings, even if the infringer immediately acknowledges the infringement.
