BGH on liability due to participation in internet file-sharing networks

The First Civil Senate of the Federal Court of Justice, which is responsible among other things for copyright law, has once again dealt with questions of liability due to participation in internet file-sharing networks.

The plaintiffs in the proceedings I ZR 272/14, I ZR 1/15 and I ZR 44/15 hold the exploitation rights to various film works. They claim damages (€600 per film title) from the respective defendants for making the respective film works publicly available by way of "file sharing" via their internet connection as well as compensation for warning costs, which they estimate at €506 in proceedings I ZR 272/14 and I ZR 1/15 based on a value of the warning of €10,000 and at €1,005.40 in proceedings I ZR 44/15 based on a value of the warning of €30,000. The Court of Appeal considered the action in the proceedings I ZR 272/14 and I ZR 1/15 to be well-founded because of the requested damages in the amount of €600 and also ordered the defendants to pay warning costs in the amount of €130.50 in all three proceedings. The Regional Court assumed that the value of the pre-court warning always amounted to twice the recoverable licence damages, i.e. in this case € 1,200.

On appeal by the plaintiffs, the Federal Supreme Court set aside the judgments of the Regional Court and referred the cases back to the Regional Court for a new hearing and decision. The Regional Court wrongly assumed that the value in dispute of the lawyer's warning always amounts to twice the licence damage to be assumed. Rather, in cases of the kind at hand, the value in dispute of the warning must be determined according to the plaintiffs' interest in preventing future infringements, taking into account all relevant circumstances of the individual case. The District Court's schematic assessment of the value of the object does not do justice to the fact that the future making available of a work on an internet file-sharing platform threatens to impair not only the licensing of the work, but its commercial exploitation as a whole. The District Court has not yet made the factual findings required for the assessment of the value of the object - such as the economic value of the infringed right, the topicality and popularity of the work, the intensity and duration of the infringement and the subjective circumstances on the part of the infringer.

The plaintiff in the proceedings I ZR 43/15 claims to be the owner of the rights to a computer game. It claims compensation for warning costs from the defendant for making the computer game publicly available via his internet connection, which it estimates at € 1,005.40 according to a value in dispute of € 30,000. The action was successful before the District Court for an amount of € 39. The District Court ordered the defendant to pay warning costs totalling €192.90. Here, too, the District Court assumed that the value of the subject matter of the pre-court warning always amounted to twice the recoverable licence damages, i.e. in this case € 2,000.

On the plaintiff's appeal, the Federal Supreme Court also set aside the judgment of the Regional Court for the aforementioned reasons and referred the case back to the Regional Court for a new hearing and decision.

The plaintiffs in the proceedings I ZR 48/15 are leading German producers of sound recordings. They are suing the defendant as the owner of an internet connection for allegedly making 809 audio files publicly available for damages and for compensation for warning costs. The defendant disputed the plaintiffs' right to sue, the correctness of the investigations and his culpability. He pointed out that his wife and his children, who were 15 and 17 years old at the time, had also had access to the two computers with internet access used in the household. The Regional Court dismissed the action. The Higher Regional Court ordered the defendant to pay all but a portion of the costs of the warning notice.

The Federal Court of Justice essentially dismissed the defendant's appeal. The Court of Appeal correctly assumed that the defendant was liable for making the music recordings publicly available via his internet connection. After taking evidence, the Court of Appeal correctly assumed that the defendant's wife was not a perpetrator. Furthermore, the defendant did not provide sufficiently concrete evidence that his children could seriously be considered as perpetrators of the infringement.

The plaintiff in the proceedings I ZR 86/15 is the owner of the exclusive exploitation rights to the film "Silver Linings Playbook". It claimed compensation for warning costs of €755.80 from the defendant as the owner of an internet connection due to the unauthorised making available of the work to the public. The defendant objected that her niece, who lives in Australia, and her partner had committed the infringement on the occasion of a visit using the password for the WLAN router given to them. The District Court dismissed the action. The Regional Court ordered the defendant to pay the costs.

The Federal Court of Justice restored the judgement of the District Court dismissing the action. Contrary to the opinion of the Court of Appeal, the defendant was not liable for injunctive relief as a "Stoerer" (interferer) for copyright infringements committed by its niece and her partner. The only reason for liability in the present case was that the defendant had not informed her niece and her niece's companion about the illegality of participating in internet file-sharing networks. The defendant could not reasonably be expected to provide such information without concrete evidence of unlawful use of the internet connection. The owner of an internet connection who allows adult members of his flat-sharing community, his adult visitors or guests to access his internet connection is not subject to a duty to instruct and monitor without any cause.

 

Judgments of the Federal Supreme Court of 12 May 2016 - I ZR 272/14, I ZR 1/15, I ZR 43/15, I ZR 44/15, I ZR 48/15 and I ZR 86/15

 

Lower courts:

I ZR 272/14 

AG Bochum - Judgment of 16 April 2014 - 67 C 4/14

LG Bochum - Judgment of 27 November 2014 - I-8 S 9/14

I ZR 1/15

AG Bochum - Judgment of 26 March 2014 - 67 C 3/14

LG Bochum - Judgment of 27 November 2014 - I-8 S 7/14

I ZR 43/15 

AG Bochum - Judgment of 8 July 2014 - 65 C 81/14

LG Bochum - Judgment of 5 February 2015 - I-8 S 17/14

I ZR 44/15 

AG Bochum - Judgment of 3 June 2014 - 65 C 558/13

LG Bochum - Judgment of 5 February 2015 - I-8 S 11/14

I ZR 48/15 

Cologne Regional Court - Judgment of 20 November 2013 - 28 O 467/12

Cologne Higher Regional Court - Judgment of 6 February 2015 - 6 U 209/13, juris

I ZR 86/15

AG Hamburg - Judgment of 8 July 2014 - 25b C 887/13

LG Hamburg - Judgment of 20 March 2015 - 310 S 23/14

 

Source: Press release of the BGH

 

Goldberg Attorneys at Law 2016

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law

Seal