The First Civil Senate, responsible among other things for copyright law, has once again addressed questions of liability concerning participation in internet file-sharing platforms.
The plaintiff holds the exploitation rights to the music tracks contained on the artist Rihanna's album “Loud.” She is suing the defendants for copyright infringement, seeking damages of at least €2,500 and reimbursement of warning costs amounting to €1,379.80, because these music tracks were made publicly accessible via the defendants' internet connection in January 2011 through “filesharing.” The defendants denied having committed the infringement and stated that their three adult children, residing with them, each owned their own computers and had access to the internet connection via a WLAN router secured with an individual password. The defendants declared that they knew which of their children had committed the infringing act; however, they refused to provide further details.
The Regional Court awarded the plaintiff damages of €2,500 and reimbursement of warning costs amounting to €1,044.40, and dismissed the remainder of the claim. The defendants' appeal against this decision was unsuccessful.
The Federal Court of Justice rejected the defendants' appeal on points of law. Initially, the plaintiff, as the claimant, bears the burden of pleading and proof that the defendants are responsible as perpetrators for the copyright infringement. However, a factual presumption of perpetration by the account holder arises if, at the time of the infringement, no other persons – such as family members – could have used this internet connection. On this matter, the account holder must provide an explanation within the scope of a so-called secondary burden of substantiation, as these are circumstances on their side unknown to the plaintiff. To this extent, the account holder is obliged, within reasonable bounds, to conduct investigations and to disclose any knowledge gained regarding the circumstances of a potential infringing act. If the account holder complies with their secondary burden of substantiation, it is then again up to the plaintiff party to present and prove the circumstances supporting the defendants' liability as perpetrators of a copyright infringement.
In the present case, the defendants did not fulfill their secondary burden of substantiation because they failed to disclose the name of the child who admitted the infringement to them. This disclosure was also reasonable for the defendants, considering the fundamental rights positions of the parties. In favor of the plaintiff, the right to intellectual property under Art. 17 (2) of the EU Charter of Fundamental Rights and Art. 14 of the German Basic Law, as well as the right to an effective remedy under Art. 47 of the EU Charter of Fundamental Rights, must be considered. On the defendants' side, the protection of the family under Art. 7 of the EU Charter of Fundamental Rights and Art. 6 (1) of the German Basic Law must be considered and brought into an appropriate balance. Accordingly, the account holder is not obliged, for example, to document their spouse's internet usage or to examine their computer for the existence of filesharing software. However, if the account holder, in the course of their incumbent investigations, has learned the name of the family member who committed the infringement, they must disclose that name if they wish to avert their own conviction.
Judgment of the Federal Court of Justice of March 30, 2017 – I ZR 19/16 – Loud
Lower Courts:
Regional Court Munich I – Judgment of July 1, 2015 – 37 O 5394/14 (ZUM-RD 2016, 308)
Higher Regional Court Munich – Judgment of January 14, 2016 – 29 U 2593/15 (WRP 2016, 385)
Source: Press Release of the Federal Court of Justice of March 30, 2017
Goldberg Attorneys at Law 2017
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
