Further decision of the BGH on liability for damages in case of file sharing

On 11 June 2015, the First Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for copyright law, upheld three judgments of the Higher Regional Court of Cologne awarding claims for damages and reimbursement of warning costs due to the accusation of file sharing.

The plaintiffs are four leading German producers of sound recordings. According to the research of the software company proMedia commissioned by them, a large number of music titles were made available for download via IP addresses on 19 June 2007, 19 August 2007 and 17 December 2007. In the investigation proceedings initiated as a result, the three defendants before the Higher Regional Court were named as the owners of the internet connections assigned to the respective IP addresses. The plaintiffs see this as an infringement of their rights as producers of sound recordings and had the defendants warned by letters from lawyers. They are claiming damages totalling € 3,000 and compensation for warning costs from the defendants in various proceedings.

In the legal dispute 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, members of his family living in his household or a third party had made the music files available for download. He claimed that he had been on holiday with his family at the alleged time of the crime. Before going on holiday, the router and computer had been disconnected from the power supply.

The Regional Court dismissed the action. The Higher Regional Court sentenced the defendant as requested. After hearing an employee of the software company and members of the defendant's family as witnesses, it considered it proven that the music files had been offered for download from the defendant's computer. The Court of Appeal did not believe the witness that the family was on holiday at the time in question. It assumed that the defendant, as the owner of the connection, was liable for the copyright infringements because, according to his statement, no other perpetrator could seriously be considered.

In the legal dispute I ZR 19/14 , the defendant also disputed the accuracy of the software company's research and the information provided by the internet provider and denied that he or a family member living in his household had offered the music files for download. As became undisputed in the appeal proceedings, the computer installed in the defendant's study was switched on and connected to the internet at the time in question. The wife, who was employed by the defendant and who used the computer professionally alongside the defendant, did not have administrator rights to install programmes. The 17-year-old son living in the defendant's household at the time did not know the password to be entered before using the computer.

The district court upheld the action. The defendant's appeal was essentially unsuccessful. Based on the evidence taken at first and second instance, the Higher Regional Court considered it proven that the music files had been made available for downloading via the defendant's internet connection and assumed that the defendant was liable for the copyright infringements as the perpetrator.

In the legal dispute 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 admitted to downloading the music files after being informed of her rights as a defendant. The defendant objects to the use of her daughter's confession by the police and claims to have instructed her about the unlawfulness of participating in music file sharing.

After the testimony of the defendant's daughter, the Regional Court largely upheld the action. The defendant's appeal was essentially unsuccessful. The Higher Regional Court considered an act of injury by the defendant's daughter to be proven and assumed a breach of the defendant's duty of supervision (§ 832.1 sentence 1 BGB).

With the appeals admitted by the Higher Regional Court, the defendants continue to pursue their motions to dismiss the action in its entirety.

The Federal Supreme Court dismissed the appeals of the defendants.

The Court of Appeal correctly assumed that the plaintiffs' entry in the Phononet database is significant evidence of ownership of the rights of phonogram producers and that no evidence has been presented to invalidate this circumstantial effect for the respective music titles in dispute.

The Court of Appeal also correctly assumed that, due to the correctness of the investigations by proMedia and the internet provider, which were proven by the plaintiffs, it was certain that the music titles had been made available for downloading via the internet connections assigned to the defendants as the connection owners. The theoretical possibility that errors may occur in the investigations by proMedia and the internet provider does not speak against the probative value of the results of the investigation if no concrete errors are presented in the individual case that speak against their correctness. A wrong letter in the reproduction of a name in an information table is not sufficient in this respect - as objected to in the legal dispute conducted under reference I ZR 19/14.

In the legal dispute I ZR 75/14 , the defendant's argument that he and his family had already gone on holiday on 18 June 2007 and had disconnected all technical devices, in particular routers and computers, from the mains before going on holiday was not proven by the interrogation of the defendant's two sons and his wife. The defendant is also responsible for the act of infringement as a perpetrator. The Court of Appeal correctly assumed that the defendant had not shown that other persons had independent access to his internet connection at the time of the offence and could therefore be considered as perpetrators of the alleged infringements. Thus, the factual presumption of the perpetration of the offence by the owner of an internet connection applies.

In the proceedings I ZR 7/14, the court of appeal correctly assumed that the defendant's daughter had committed the infringement. In doing so, the Court of Appeal did not only rely on the confession of the daughter documented in the police interrogation record, but also took into account that the Regional Court also heard the daughter herself as a witness and that she confirmed her confession to the police after having been duly informed about her right to refuse to testify. The defendant is responsible for the damage caused by the infringement of her then minor daughter pursuant to § 832.1 sentence 1 BGB. It is true that parents regularly already satisfy their duty to supervise a normally developed child who obeys their basic commands and prohibitions by instructing the child about the illegality of participating in internet file-sharing networks and prohibiting him or her from participating. In principle, parents are not obliged to monitor the child's use of the internet, to check the child's computer or to (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 infringing the prohibition (BGH, judgment of 15 November 2012 - I ZR 74/12, GRUR 2013, 511 marginal no. 24 - Morpheus). In the case in dispute, however, the Court of Appeal was unable to establish that the defendant had instructed its daughter accordingly. The fact that the defendant may have laid down general rules on "proper conduct" for its children is not sufficient in this respect.

When assessing the damages in the form of a licence analogy, the court of appeal did not err in law by assuming an amount of € 200 for each of the 15 music titles included in the calculation of damages. Finally, the court of appeal rightly assumed a claim for compensation for warning costs and calculated its amount on the basis of the German Lawyers' Fees Act (Rechtsanwaltsvergütungsgesetz).


Lower courts:

Judgment of 11 June 2015 - I ZR 19/14 - Tauschbörse I

LG Köln - Judgment of 31 October 2012 - 28 O 306/11 (ZUM-RD 2013, 74)

OLG Cologne - Judgment of 20 December 2013 - 6 U 205/12 (ZUM-RD 2014, 495)


Judgment of 11 June 2015 - I ZR 7/14 - Tauschbörse II

Cologne Regional Court - Judgment of 2 May 2013 - 14 O 277/12

Cologne Higher Regional Court - Judgment of 6 December 2013 - 6 U 96/13 (juris)


Judgment of 11 June 2015 - I ZR 75/14 - Tauschbörse III

Cologne Regional Court - Judgment of 24 October 2012 - 28 O 391/11

Cologne Higher Regional Court - Judgment of 14 March 2014 - 6 U 210/12 (juris)


Source: Press release of the BGH


Goldberg Attorneys at Law 2015

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law

E-mail: info@goldberg.de