In a decision of the Regional Court of Hamburg 308 O 76/07 of 14.03.2008 (not yet final), the obligations of the music industry to provide evidence in cases of illegal downloading of music recordings via file sharing systems were tightened to the detriment of the music industry.
The subject matter of the proceedings before the Hamburg Regional Court was one of the mass injunction proceedings brought before many German courts against private users for making music recordings publicly available in a file-sharing system via the defendant's Internet connection.
As has been customary and deemed sufficient in the proceedings to date, the plaintiff, as the producer of the sound recordings and, according to its representation, the holder of the exclusive exploitation rights to the music recordings in dispute, merely stated that a total of 170 audio files had been made available for downloading at a certain point in time under an IP address via file-sharing software. Through corresponding research via the responsible public prosecutor's office, the plaintiff had been able to determine that the IP address had been assigned to the defendant at the time the music tracks were made available. The defendant was not permitted to use the music tracks at any time. The plaintiff requested that the defendant be prohibited from making the music recordings available on a computer for retrieval by other participants in file-sharing systems and thus from making them accessible to the public. The defendant sought dismissal of the action and argued that it was not the perpetrator of the infringements. An infringement was also not attributable to it as an interferer. The music files allegedly made available via its IP address were not located on its computer. Nor was she aware of any infringement by third parties in her household.
The Regional Court of Hamburg ruled, in deviation from previous proceedings, that the plaintiff bore the full burden of presentation and proof. The plaintiff had to prove in detail that her rights had been unlawfully infringed by a specific act via the defendant's internet connection through a file sharing system by publishing the music tracks. In the opinion of the Regional Court of Hamburg, the plaintiff did not meet its burden of proof if it only alleged the possible infringement of rights and limited itself to submitting paper printouts of the company investigating and commissioned to do so on behalf of the plaintiff as well as the identification of an IP address via which music titles were allegedly made available during the period in question. The paper printouts of the identified company did not have the necessary evidentiary value with regard to the specific infringement and the specifically distributed music files. With these private documents, the infringement could not be shown and proven in the specific case. Since the plaintiff had not submitted any further evidence and the examination of witnesses had not been productive, the Regional Court of Hamburg dismissed the action brought by the recording industry.
©2008 Goldberg Attorneys at Law
Alexander Goldberg
Attorney at Law
Specialist attorney for intellectual property law
Specialist attorney for information technology law (IT law)
a.goldberg@goldberg.de
