The I. Civil Senate, which is responsible for copyright law among other things, once again dealt with questions of liability due to participation in internet file-sharing networks.
The plaintiff holds the exploitation rights to the music titles contained on the music album "Loud" by the artist Rihanna. The plaintiff claims damages of at least € 2,500 and compensation for warning costs of € 1,379.80 against the defendants for copyright infringement, because these music titles were made publicly accessible via the defendants' internet connection in January 2011 by way of "file sharing". The defendants denied having committed the infringement and pointed out that their three children, who lived with them and had already reached the age of majority, each had their own computer and had access to the internet connection via a WLAN router with an individual password. The defendants stated that they knew which of their children had committed the infringement; however, they refused to provide further details.
The Regional Court awarded the plaintiff damages in the amount of € 2,500 and compensation for warning costs in the amount of € 1,044.40 and dismissed the rest of the action. The defendant's appeal against this decision was unsuccessful.
The Federal Court of Justice dismissed the defendants' appeal. In the starting point, the plaintiff as the claimant bears the burden of proof that the defendants are responsible for the copyright infringement as perpetrators. However, there is a factual presumption in favour of the perpetration of the infringement by the owner of the connection if no other persons - such as family members - were able to use this internet connection at the time of the infringement. The connection owner must explain himself on this question within the framework of a so-called secondary burden of proof, because it concerns circumstances on his side that are unknown to the plaintiff. To this extent, the subscriber is obliged to make reasonable enquiries and to inform the plaintiff of what knowledge he has gained about the circumstances of a possible infringement. If the subscriber meets his secondary burden of proof, it is again up to the plaintiff to present and prove the circumstances that speak in favour of the defendant's liability as the perpetrator of a copyright infringement.
In the case in dispute, the defendants did not meet their secondary burden of proof because they did not state the name of the child who admitted the infringement to them. This information was also reasonable for the defendants, taking into account the fundamental rights positions of the parties. In favour of the plaintiff, the right to intellectual property pursuant to Article 17.2 of the EU Charter of Fundamental Rights and Article 14 of the Basic Law as well as to an effective legal remedy pursuant to Article 47 of the EU Charter of Fundamental Rights and, on the side of the defendants, the protection of the family pursuant to Article 7 of the EU Charter of Fundamental Rights and Article 6.1 of the Basic Law must be taken into account and brought into an appropriate balance. Accordingly, the connection owner is not obliged, for example, to document the internet use of his spouse and to examine his computer for the existence of file-sharing software. However, if the owner of the connection has learned the name of the family member who committed the infringement in the course of the investigations incumbent upon him, he must disclose his name if he wants to avert his own conviction.
Judgment of the BGH of 30 March 2017 - I ZR 19/16 - Loud
Lower courts:
LG München I - Judgment of 1 July 2015 - 37 O 5394/14 (ZUM-RD 2016, 308)
OLG Munich - Judgment of 14 January 2016 - 29 U 2593/15 (WRP 2016, 385)
Source: BGH press release of 30.03.2017
Goldberg Attorneys at Law 2017
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
