Connection owner not liable for file sharing by wife and son

The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for copyright law among other things, ruled on 8 January 2014 that the owner of an internet connection is not liable for the conduct of an adult family member if he had no indication that the family member was misusing the internet connection for illegal file sharing.

The plaintiffs are four leading German producers of sound recordings. The defendant is the owner of an internet access. His wife and their adult son also live in his household.

The plaintiffs sent the defendant a warning letter from a lawyer; they claimed that on 12 June 2006, 3,749 music recordings, to which they held the exclusive rights of use under copyright law, had been made available for download on an Internet file-sharing platform via his Internet connection. The defendant issued a cease-and-desist declaration with a penalty clause without acknowledging any legal obligation. However, he refused to pay the asserted warning costs.

The plaintiffs are claiming reimbursement of warning costs from the defendant in the amount of € 3,454.60.

The defendant claims that he is not responsible for the alleged infringements. His then 20-year-old stepson had made the music files accessible via the internet connection. The defendant's stepson admitted to the police during his questioning of the accused that he had downloaded music onto his computer using the file-sharing programme "BearShare".

The Regional Court upheld the action. The Court of Appeal ordered the defendant to pay the plaintiffs € 2,841 and dismissed the further claim. It stated that the defendant was responsible for the infringement of the copyrighted rights to the music. By making the internet connection available to his 20-year-old stepson, he had created the risk that the latter would participate in copyright-infringing music file-sharing networks. It was therefore reasonable for him to inform his stepson of the illegality of participation in file-sharing networks even without concrete indications of an already committed or imminent copyright infringement and to prohibit him from the illegal use of corresponding programmes. The defendant had violated this obligation because he had not - at least not sufficiently - instructed his stepson.

The Federal Court of Justice overturned the appeal judgement and dismissed the action in its entirety. When providing an internet connection to family members who are of age, it must be taken into account that the provision by the owner of the connection is based on family ties and that adults are responsible for their own actions. In view of the special relationship of trust between family members and the personal responsibility of adults, the owner of the connection may let an adult family member use his internet connection without having to instruct or monitor him; only if the owner of the connection - for example due to a warning notice - has concrete reason to fear that the adult family member is misusing the internet connection for legal infringements, he has to take the measures necessary to prevent legal infringements. Since, according to the findings of the Court of Appeal, the defendant had no indication that his adult stepson was misusing the internet connection for illegal participation in file-sharing networks, he was not liable as a "Stoerer" (interferer) for his stepson's copyright infringements for injunctive relief even if he did not instruct him or did not instruct him sufficiently about the illegality of participation in file-sharing networks.

 

Judgment of the BGH of 08.01.2014 - I ZR 169/12 - BearShare

Lower courts:

Cologne Regional Court - Judgment of 24 November 2010 - 28 O 202/10, ZUM-RD 2011, 111

OLG Cologne - Judgment of 22 July 2011 - 6 U 208/10, ZUM 2012, 583

BVerfG (Chamber), Order of 21 March 2012 - 1 BvR 2365/11, GRUR 2012, 601 = WRP 2012, 702

Cologne Higher Regional Court, judgment of 17 August 2012 - 6 U 208/10, juris

 

Source: Press release of the BGH

 

Goldberg Attorneys at Law 2014

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

Specialist lawyer for information technology law

E-mail: info@goldberg.de

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