In a judgement handed down on Wednesday, 16 May 2012, the 6th Civil Senate of the Higher Regional Court of Cologne, which is responsible for copyright issues among other things, ruled on the question of when an Internet connection owner is liable for copyright infringements committed by his spouse who also uses the connection (Ref.: 6 U 239/11).
In the case at issue, a computer game was offered for download via the defendant wife's internet connection on each of two days. The owner of the copyright to this game sent the defendant a warning. The defendant did not accept the warning but objected. In the subsequent legal dispute before the Regional Court of Cologne, the defendant defended itself by claiming that the game had not been offered by itself. The connection had also and even mainly been used by her husband, who had died in the meantime. The Regional Court upheld the action and ordered the wife to cease and desist and to pay damages, including reimbursement of the warning costs. On appeal by the defendant, the Higher Regional Court overturned this judgement and dismissed the action.
In the trial, the question was disputed as to who had to explain and, if necessary, prove whether a copyright infringement had been committed by the subscriber himself or by a third party. Here, the Senate continued the case law of the Federal Court of Justice that there was a presumption that the owner of the connection had been the perpetrator. However, if the owner - as in this case - presented the serious possibility of a different course of events, the owner of the copyright had to prove the perpetration. Since the plaintiff in the present case had not offered any evidence of copyright infringement by the defendant wife, it had to be assumed that the computer game had been offered for download by the husband.
Thus, it came down to the second question, namely whether the connection owner is also liable for copyright infringements that are not committed by himself, but by a third party. In this regard, the court took the view that the mere granting of the possibility of shared use to the spouse does not trigger liability. Such liability could only be considered if either the owner of the connection had knowledge that the spouse was using the connection for illegal activities (which was not the case here), or if there was a duty to supervise. A duty to check and monitor is assumed if parents allow their (underage) children to use their connection and they commit copyright infringements on the internet. However, such a duty of supervision does not exist in the relationship between spouses.
The Senate allowed the appeal to the Federal Court of Justice, as the question of the responsibility of internet connection owners for an infringement of copyrights by their spouses has not yet been clarified by the highest courts.
Source: Press release of the Cologne Higher Regional Court, Stefanie Rüntz, Press and Public Relations Officer
Goldberg Attorneys at Law 2012
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
