The First Civil Senate of the Federal Court of Justice, which is responsible inter alia for copyright law, has ruled that parents are generally not liable for the illegal file sharing of a 13-year-old child if they had instructed the child about the prohibition of unlawful participation in internet file sharing networks and had no indication that their child was violating this prohibition.
The plaintiffs are producers of sound recordings. They are the owners of exclusive rights of use under copyright law in numerous music recordings.
On 28 January 2007, according to the investigations of a company commissioned by the plaintiffs, 1147 audio files were offered for free download on an internet file-sharing platform under a certain IP address. The plaintiffs filed criminal charges against unknown persons and informed the public prosecutor's office of the IP address. According to the information obtained from the internet provider during the preliminary proceedings, the IP address was assigned to the defendant's internet connection at the time in question.
The defendants are a married couple. They had also made the internet connection available to their son, who was 13 years old at the time, and to whom they had given the defendant's second-hand PC for his 12th birthday.
During a search of the defendant's flat ordered by the competent district court, the PC of the defendant's son was seized on 22 August 2007. The file sharing programmes "Morpheus" and "Bearshare" were installed on the computer; the icon of the programme "Bearshare" was visible on the desktop of the PC.
After inspecting the investigation file of the public prosecutor's office, the plaintiffs had a lawyer issue a warning to the defendants and request them to issue a cease-and-desist declaration with a penalty clause. The defendants gave the cease-and-desist declaration. However, they refused to pay damages and to reimburse the warning costs.
The plaintiffs are of the opinion that the defendants are obliged to compensate the damage caused by the unauthorised making available of the music to the public due to a breach of their parental supervision duty. They are claiming damages from the defendants for making 15 music recordings available to the public in the amount of €200 per title, i.e. a total of €3,000 plus interest, as well as reimbursement of warning costs in the amount of €2,380.80.
The district court upheld the action. The defendants' appeal was unsuccessful. The Court of Appeal held that the defendants were liable under § 832 (1) BGB for the damage caused by the illegal file sharing of their underage son, because they had violated their parental duty of supervision. They had not - as they claimed - monitored compliance with the rules of conduct they had laid down for internet use. If the defendants had indeed installed a firewall and a security program on their son's computer, which had been set to "no permission" with regard to the installation of further programs, their son would not have been able to install the file-sharing software. If the first defendant had checked his son's computer on a monthly basis, he should have discovered the programmes installed by his son by looking at the software list or the computer's desktop.
The Federal Supreme Court overturned the decision of the Court of Appeal and dismissed the action. According to the BGH, parents regularly already satisfy their duty to supervise a normally developed 13-year-old child who obeys their basic commands and prohibitions by instructing the child about the prohibition of unlawful participation in internet file-sharing networks. In principle, parents are not obliged to monitor the child's use of the internet, to check the child's computer or to (partially) block the child's access to the internet. According to the Federal Supreme Court, parents are only obliged to take such measures if they have concrete indications of an infringing use of the internet connection by the child.
Judgment of the Federal Court of Justice of 15 November 2012 - I ZR 74/12 - Morpheus
Lower courts:
LG Köln - Judgment of 30 March 2011 - 28 O 716/10, CR 2011, 687
OLG Cologne - Judgment of 23 March 2012 - 6 U 67/11, WRP 2012, 1007
Source: Press release of the BGH
Goldberg Attorneys at Law 2012
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
