On June 11, 2015, the First Civil Senate of the Federal Court of Justice, which is responsible, among other things, for copyright law, confirmed three judgments of the Cologne Higher Regional Court, which awarded claims for damages and reimbursement of warning notice costs due to alleged file sharing.
The plaintiffs are four leading German phonogram producers. According to investigations by their commissioned software company proMedia, numerous music titles were made available for download via IP addresses on June 19, 2007, august 19, 2007, and December 17, 2007. In the subsequent investigative proceedings, the three defendants sued before the Higher Regional Court were identified as the owners of the internet connections assigned to the respective IP addresses. The plaintiffs consider this an infringement of their phonogram producer rights and had the defendants served with warning notices by legal counsel. They are suing the defendants in separate proceedings for damages totaling €3,000 and for reimbursement of warning notice costs.
In litigation I ZR 75/14, the defendant disputed the accuracy of the software company's investigations. He denied that the IP address had been assigned to him at the time in question and that he, his family members living in his household, or a third party had made the music files available for download. He claimed that he and his family were on vacation at the alleged time of the offense. Before leaving for vacation, the router and computer had been disconnected from the power supply.
The Regional Court dismissed the claim. The Higher Regional Court convicted the defendant as requested. Following the witness testimony of a software company employee and the defendant's family members, it considered it proven that the music files had been offered for download from the defendant's computer. The appellate court did not believe the witness's claim that the family was on vacation at the time in question. It assumed that the defendant, as the account holder, was liable for the copyright infringements because, according to his submission, no other perpetrator could seriously be considered.
Also in litigation I ZR 19/14, the defendant disputed the accuracy of the software company's investigations and the internet provider's information, and denied that he or a family member living in his household had offered the music files for download. As became undisputed in the appellate proceedings, the computer installed in the defendant's study was switched on and connected to the internet at the time in question. The defendant's employed wife, who used the computer professionally alongside the defendant, did not have administrator rights to install programs. The 17-year-old son, who was living in the defendant's household at the time, did not know the password required to use the computer.
The Regional Court granted the claim. The defendant's appeal was largely unsuccessful. Based on the evidence taken in the first and second instances, the Higher Regional Court considered it proven that the music files had been made available for download via the defendant's internet connection, and assumed that the defendant is liable as the perpetrator for the copyright infringements.
In litigation I ZR 7/14, the internet connection was used by the defendant, her 16-year-old son, and her 14-year-old daughter. During her police interrogation, the defendant's daughter, after being informed of her rights as an accused person, admitted to having downloaded the music files. The defendant opposes the use of her daughter's police confession and claims to have informed her about the illegality of participating in music file-sharing platforms.
Following the witness testimony of the defendant's daughter, the Regional Court largely granted the claim. The defendant's appeal was largely unsuccessful. The Higher Regional Court considered an infringing act by the defendant's daughter to be proven and assumed a breach of the defendant's supervisory duty (§ 832 para. 1 sentence 1 BGB).
With the appeals on points of law permitted by the Higher Regional Court, the defendants continue to pursue their applications for complete dismissal of the claim.
The Federal Court of Justice rejected the defendants' appeals on points of law.
The appellate court rightly assumed that the plaintiffs' entry in the Phononet database is a significant indication of ownership of phonogram producer rights and that no evidence has been presented to refute this indicative effect for the respective disputed music titles.
The appellate court also correctly assumed that, based on the accuracy of proMedia's and the internet provider's investigations, which was proven by the plaintiffs, it is established that the music titles had been made available for download via the internet connections assigned to the defendants as account holders. The theoretical possibility that errors may also occur in the investigations by proMedia and the internet provider does not negate the probative value of the investigation results if no specific errors are presented in the individual case that speak against their accuracy. A wrong letter in the name reproduction in an information table – as argued in the litigation under file reference I ZR 19/14 – is not sufficient in this regard.
In litigation I ZR 75/14, the defendant's submission that he and his family had already gone on vacation on June 18, 2007, and had disconnected all technical devices, particularly the router and computer, from the power supply before leaving for vacation, was not proven by the testimony of the defendant's two sons and his wife. The defendant is also liable as the perpetrator for the infringing act. The appellate court correctly assumed that the defendant had not demonstrated that other persons had independent access to his internet connection at the time of the offense and could therefore be considered perpetrators of the asserted infringements. Thus, the factual presumption of culpability of the internet account holder applies.
In proceedings I ZR 7/14, the appellate court rightly assumed that the defendant's daughter committed the infringing act. In doing so, the appellate court, free of legal error, not only based its decision on the daughter's confession documented in the police interrogation report but also considered that the Regional Court had also interrogated the daughter herself as a witness, and she had confirmed her police confession after proper instruction on her right to refuse to testify. The defendant is liable for the damage caused by the infringing act of her then minor daughter in accordance with § 832 para. 1 sentence 1 BGB. Parents generally fulfill their duty of supervision over a normally developed child who obeys their fundamental commands and prohibitions simply by instructing the child about the illegality of participating in internet file-sharing platforms and prohibiting them from doing so. There is generally no obligation for parents to monitor the child's internet use, check the child's computer, or (partially) block the child's access to the internet. Parents are only obliged to take such measures if they have concrete indications that the child is violating the prohibition (Federal Court of Justice, Judgment of november 15, 2012 – I ZR 74/12, GRUR 2013, 511 para. 24 – Morpheus). However, in the present case, the appellate court could not determine that the defendant had instructed her daughter accordingly. The fact that the defendant may have established general rules for "proper conduct" for her children is not sufficient in this regard.
In assessing damages in the form of license analogy, the appellate court correctly assumed an amount of €200 for each of the total of 15 music titles included in the damage calculation. Finally, the appellate court also rightly assumed a claim for reimbursement of warning notice costs and calculated its amount on the basis of the Lawyers' Remuneration Act.
Lower Courts:
Judgment of June 11, 2015 – I ZR 19/14 – File-Sharing Platform I
Cologne Regional Court – Judgment of October 31, 2012 – 28 O 306/11 (ZUM-RD 2013, 74)
Cologne Higher Regional Court – Judgment of December 20, 2013 – 6 U 205/12 (ZUM-RD 2014, 495)
and
Judgment of June 11, 2015 – I ZR 7/14 – File-Sharing Platform II
Cologne Regional Court – Judgment of May 2, 2013 – 14 O 277/12
Cologne Higher Regional Court – Judgment of December 6, 2013 – 6 U 96/13 (juris)
and
Judgment of June 11, 2015 – I ZR 75/14 – File-Sharing Platform III
Cologne Regional Court – Judgment of October 24, 2012 – 28 O 391/11
Higher Regional Court of Cologne – Judgment of March 14, 2014 – 6 U 210/12 (juris)
Source: Press Release of the Federal Court of Justice
Goldberg Attorneys 2015
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
