On behalf of the software developer and distributor Epic Games International SARL, the law firm Beiten Burkhardt has contacted our clients by way of a warning letter.
They are accused of having offered digital product keys for downloading and activating computer games, so-called gaming key codes, via their Internet platform without the consent of the respective rights holders. The affected computer games include the titles World War Z, Metro Exodus and The Sinking City, whose respective right holders have authorized Epic Games International to assert their claims against third parties.
Epic Games International SARL alleges that the distribution of the Key Codes without their consent constitutes a violation of the copyright of the respective titles. The principles of the Used Soft decision of the European Court of Justice, according to which the trade with used computer programs is basically lawful, are not applicable or in any case relevant: there is no guarantee that the original acquirer of the key code will not retain a copy of the computer game. The splitting of physically distributed data carrier (retail product) and the key code also leads to unauthorised product modification and secondary exploitation.
Punitive injunctions and obligations in gaming law
The allegation of copyright infringement is usually accompanied at the same time by a declaration of discontinuance and a declaration of obligation as well as a cost account in the amount of XX EUR based on a value in dispute of 100,000.00 EUR.
Epic Games International demands the return of the signed cease-and-desist declaration within the next week and to reimburse the costs incurred to date. In addition, a declaration of commitment is to be submitted ensuring that the offer of key codes for the affected computer games on the client’s platform will not be made in the future.
By distributing the key codes, our clients are said to have committed a copyright infringement according to §§ 97 par. 1, 16 par. 1, 17 par. 1 UrhG. If the infringement is realized, § 97 UrhG will entitle the infringed party to the removal of the impairment, to a future injunction and to compensation for the damage incurred. In most cases, it is not possible to determine the amount of the damage or the amount of the lawyer’s fees incurred without further examination.
Copyright warning – How should you behave?
- Despite the high amounts demanded and the need to avoid further cost risks, you should never make an inconsiderate binding declaration to the other party. Instead, it is advisable to remain calm and consider all options.
- A cease-and-desist and commitment leave notice will leave you in the worst possible scenario since, even if the allegations of copyright infringement are true, pre-formulated cease-and-desist letters and undertakings often restrict you beyond what is necessary.
- If the cease-and-desist declaration also provides for a contractual penalty in the event of infringement, the amount of which the court must decide in the event of a dispute, this is usually correct. However, the business fee applied in the case of a dispute of EUR 100,000.00 must be examined on a case-by-case basis. In addition, you should not accept all asserted infringements without hesitation. The burden of proof for the stated infringements lies first with the party who asserts claims against you.
- In any case, you should keep an eye on the deadline stated in the reminder. The latter tends to be short and leaves you little room for lengthy considerations. It is therefore advisable to quickly consider the legal situation and to derive appropriate steps from it.
Solution: Have the warning letter checked by a lawyer
Warning letters in the copyright field must always be treated with the necessary seriousness. Under no circumstances should you sign and return these letters prematurely, especially completely enclosed cease-and-desist letters or declarations of obligation. These automatic declarations often contain regulations that discriminate against you inapropriately, and to which you do not have to reply regardless of your legal situation. After receiving a warning notice, it is therefore best to contact a lawyer who specialises in copyright law and who will carefully examine the warning notice for you. In this way you can effectively limit your individual risk.
Schlun & Elseven: Your expert partner in gaming law
Schlun & Elseven Lawyers, with offices in Cologne, Aachen and Düsseldorf as well as conference rooms in Hamburg, Berlin and Munich, are at your service throughout Germany. We are your reliable and competent partner for all questions relating to gaming law and regarding copyright warnings issued by Epic Games International SARL. We will assist you with swiftness in acting against the warning notice or the amount of damages specified.
We are available throughout Germany and are your reliable and competent partners in all copyright law matters.