The First Civil Senate of the Federal Court of Justice (BGH), which is responsible, among other things, for copyright law, ruled on January 8, 2014, that the owner of an internet connection is not liable for the actions of an adult family member if there were no indications that this individual was misusing the internet connection for illegal file-sharing.
The plaintiffs are four prominent German record producers. The defendant is the owner of an internet connection. His household also includes his wife and her adult son.
The plaintiffs issued a warning letter to the defendant through their lawyers, alleging that on June 12, 2006, 3,749 music recordings, for which they held exclusive copyright exploitation rights, were made available for download on an internet file-sharing platform via his internet connection. The defendant submitted a cease and desist declaration with a penalty clause, without acknowledging any legal obligation. However, he refused to cover the claimed warning costs.
The plaintiffs are claiming reimbursement from the defendant for warning costs amounting to €3,454.60.
The defendant contends that he is not liable for the alleged infringements. He stated that his stepson, who was 20 years old at the time, had made the music files accessible via the internet connection. The defendant's stepson admitted during his police interrogation that he had downloaded music to his computer using the file-sharing program 'BearShare'.
The Regional Court granted the claim. The appellate court ordered the defendant to pay €2,841 to the plaintiffs and dismissed the remaining part of the claim. It reasoned that the defendant was responsible for the infringement of the copyrighted rights to the music titles. By providing his 20-year-old stepson with the internet connection, he had created the risk that the latter would engage in copyright-infringing music file-sharing. Therefore, it was reasonable for him to inform his stepson about the illegality of participating in file-sharing platforms and to prohibit him from using such programs unlawfully, even without specific indications of an already committed or impending copyright infringement. The defendant had breached this obligation by failing to adequately instruct his stepson.
The Federal Court of Justice overturned the appellate court's judgment and dismissed the entire claim. When an internet connection is provided to adult family members, it must be recognized that such provision by the connection owner is based on familial ties, and adults are personally responsible for their actions. Considering the special relationship of trust among family members and the individual responsibility of adults, the connection owner may allow an adult family member to use their internet connection without needing to instruct or monitor them. Only if the connection owner has concrete reason to suspect, for instance due to a warning, that the adult family member is misusing the internet connection for infringements, must they take the necessary steps to prevent such infringements. Since the defendant, based on the appellate court's findings, had no indications that his adult stepson was misusing the internet connection for unlawful participation in file-sharing, he is not liable as a disturber for his stepson's copyright infringements, even if he had not, or not sufficiently, informed him about the illegality of participating in file-sharing platforms.
Judgment of the Federal Court of Justice of January 8, 2014 – I ZR 169/12 – BearShare
Lower Courts:
Regional Court Cologne – Judgment of november 24, 2010 – 28 O 202/10, ZUM-RD 2011, 111
Higher Regional Court Cologne – Judgment of July 22, 2011 – 6 U 208/10, ZUM 2012, 583
Federal Constitutional Court (Chamber), Decision of March 21, 2012 – 1 BvR 2365/11, GRUR 2012, 601 = WRP 2012, 702
Higher Regional Court Cologne, Judgment of august 17, 2012 – 6 U 208/10, juris
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
