Private individuals can be sued for injunctive relief, but not for damages, if their inadequately secured WLAN connection is used by unauthorised third parties for copyright infringements on the Internet. This was decided by the First Civil Senate of the Federal Court of Justice, which is responsible for copyright law, among other things.
The plaintiff is the owner of the rights to the music title "Summer of Our Lives". With the help of the public prosecutor's office, it was established that this title had been offered for download on the internet from the defendant's internet connection on a file-sharing platform. However, the defendant was on holiday during the time in question. The plaintiff sought injunctive relief, damages and reimbursement of warning costs from the defendant.
The Regional Court sentenced the defendant as requested. The court of appeal dismissed the action.
The Federal Court of Justice overturned the appeal judgment insofar as the Court of Appeal had dismissed the action with the application for injunctive relief and with the application for payment of the warning costs. The Federal Court of Justice assumed that the defendant was not liable as a perpetrator or participant in a copyright infringement. However, private connection owners also have a duty to check whether their WLAN connection is protected by appropriate security measures against the risk of being misused by unauthorised third parties to commit copyright infringements. However, the private operator of a Wi-Fi network cannot be expected to continuously adapt their network security to the state of the art and to spend the corresponding financial resources to do so. Their duty to check therefore relates to compliance with the security measures customary in the market for the private sector at the time of installation of the router.
According to the Federal Court of Justice, the defendant had violated this duty. He had left it at the factory default security settings of the WLAN router and had not replaced the password with a personal, sufficiently long and secure password. Such password protection was already common and reasonable for private WLAN users in 2006. It was in the vital self-interest of all authorised users and did not involve any additional costs.
The defendant is therefore liable for injunctive relief and reimbursement of warning costs according to the legal principles of so-called "Stoererhaftung" (Breach of Duty of Care). This liability already exists after the first copyright infringement committed via his WLAN connection. On the other hand, the defendant is not liable for damages. The Federal Court of Justice denied liability as a perpetrator of a copyright infringement because the defendant did not make the music title in question accessible on the internet. Liability as an accessory to another's copyright infringement would have required intent, which was lacking in the case at issue.
Source: Press release of the Federal Supreme Court on the judgement of 12 May 2010 - I ZR 121/08 - Summer of our lives
Lower courts:
OLG Frankfurt, judgement of 1 July 2008 - 11 U 52/07 (GRUR-RR 2008, 279),
Frankfurt Regional Court, Judgment of 5 October 2007 - 2/3 O 19/07
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
