In a civil law case, the Regional Court of Hamburg (LG Hamburg) ordered the defendant, who had posted two music recordings on an Internet file-sharing platform in 2006 when he was almost sixteen years old in violation of copyright law, to pay damages in the amount of € 15 per music title to the plaintiff music publishers. The further claim for damages was dismissed, as was the claim for damages against the defendant's father (judgement of 8 October 2010, file number 308 O 710/09).
In June 2006, the defendant (2nd defendant), who was born in 1990, uploaded two music recordings to an internet file sharing platform via his father's internet connection (1st defendant), without the latter's knowledge, so that the files could be accessed and downloaded by other participants by way of so-called file sharing. The recordings were the music recording "Engel" by the artist group "Rammstein" and the recording "Dreh' dich nicht um" by the artist "Westernhagen". The artists were not involved in the legal dispute before the Hamburg Regional Court.
The plaintiffs are the owners of the exclusive phonogram producer rights to the music recordings mentioned. They demanded, among other things, that both defendants pay them EUR 300 in damages per recording for the unauthorised use.
The Regional Court ruled that the 2nd defendant was liable to pay damages to the plaintiffs. The second defendant had culpably and unlawfully infringed copyright by copying the music without permission and posting it on the internet. The plaintiffs' right to produce sound carriers also included the right of reproduction and the right of making available to the public. However, the amount of damages had to be based on what reasonable parties would have agreed as a reasonable licence fee for the use of the music recordings if they had concluded a fictitious licence agreement. Since there was no directly applicable tariff for the uses to be assessed, the reasonable licence had to be estimated. In doing so, the court took into account that although the titles in question were those of well-known artists, the recordings were already many years old in 2006 and therefore only a limited demand could be assumed. Since it could also be assumed that the titles were available for download for a short period of time, the court estimated that there could have been at most 100 downloads per title. Based on the GEMA tariff VR-OD 5 (use of works by way of music-on-demand for private use) and the settlement proposal of the Arbitration Board at the German Patent and Trade Mark Office of 5 May 2010 in the arbitration proceedings between BITKOM and GEMA, the court estimated the reasonable licence at €15 per title.
The Regional Court dismissed the action for damages against the father of the second defendant - the first defendant - on the grounds that he was neither a perpetrator nor a participant in the copyright infringement. The first defendant was to be regarded as a so-called "Stoerer" (interferer) because he had provided his son with the internet connection through which the infringements had been committed in breach of his duty of supervision. However, this conduct did not give rise to a liability for damages.
Judgment of the Hamburg Regional Court (LG Hamburg) of 8.10.2010, file number 308 O 710/09
Source: Press release of the press office of the Hanseatic Higher Regional Court
Goldberg Attorneys at Law 2010
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
