Judgment of the Federal Court of Justice of 26 July 2018 - I ZR 64/17 - Dead Island
The First Civil Senate of the Federal Court of Justice, which is responsible, among other things, for copyright law, has ruled that the operator of an internet access via WLAN and a Tor exit node is not liable as a "Stoerer" (interferer) for copyright infringements committed by third parties via his internet connection by way of file sharing under the new version of Section 8 (1) sentence 2 of the German Telemedia Act (TMG), which has been in force since 13 October 2017. However, a blocking claim of the right holder pursuant to Section 7 subsec. 4 TMG nF may be considered.
Facts:
The plaintiff is the owner of the exclusive rights of use to the computer game "Dead Island". The defendant maintains an internet connection. On 6 January 2013, the programme "Dead Island" was offered for download via the defendant's internet connection in an internet file-sharing platform. The plaintiff issued a warning to the defendant in March 2013 and requested him to submit a cease-and-desist declaration with a penalty clause. Previously, the plaintiff had sent the defendant two legal warnings for copyright infringements committed via his internet connection in 2011 relating to other works by file sharing.
The defendant claimed that he had not committed any infringement himself. He operated five publicly accessible WLAN hotspots under his IP address and two incoming channels from the Tor network ("Tor exit nodes") by wire.
Process history so far:
The plaintiff sued the defendant for injunctive relief and reimbursement of warning costs. The Regional Court upheld the action. The Court of Appeal dismissed the defendant's appeal with the proviso that the defendant be ordered to prevent third parties from making the computer game or parts thereof available to the public via an internet exchange platform using his internet connection, under penalty of an order.
Decision of the Federal Supreme Court:
In response to the defendant's appeal, the Federal Supreme Court set aside the judgement of the Higher Regional Court with regard to the order to cease and desist and referred the case back to the Higher Regional Court for a new hearing and decision. The Federal Supreme Court dismissed the appeal against the award of the warning costs.
The Federal Court of Justice (BGH) ruled that the defendant was obliged to pay the costs of the warning notice under the law applicable at the time of the warning notice because he was liable as a "Stoerer" (interferer) for the infringement of the rights of third parties. The defendant was in breach of duty in failing to secure his WLAN against misuse by third parties by using the encryption standard that was current at the time of purchase and an individual password. In the case of private provision by the defendant, this duty existed without further ado as soon as the connection was put into operation. Insofar as the defendant provided the internet access via WLAN for commercial purposes, he was obliged to take these security measures because he had already been informed that copyright infringements by way of file sharing had been committed via his internet connection in 2011. The assumption of "Stoererhaftung" (Breach of Duty of Care) is not precluded by the fact that the work named in the notice is not identical to the work affected by the renewed infringement. The requirements for liability are also met if the infringement occurred via the Tor exit node operated by the defendant. The defendant was in breach of duty in failing to counteract the known danger of copyright infringements through file sharing by means of technical precautions. According to the findings of the Higher Regional Court, which are unobjectionable under the law of review, the blocking of file-sharing software is technically possible and reasonable for the defendant.
The Federal Court of Justice overturned the order to cease and desist because, according to the new version of Section 8(1) sentence 2 of the German Telemedia Act (TMG), which has been in force since 13 October 2017, the intermediary of an internet access cannot be held liable for damages, removal or omission of an infringement due to an unlawful act of a user. If an act is no longer unlawful at the time of the revision decision, the award of a claim for injunctive relief cannot be considered.
There are no far-reaching objections under EU law to the application of Section 8 subsec. 1 sentence 2 TMG nF. It is true that, pursuant to Article 8(3) of Directive 2001/29/EC and Article 11 sentence 3 of Directive 2004/48/EC, the Member States are obliged to provide for the possibility of injunctions in favour of rightholders against intermediaries whose services are used by a third party to infringe a copyright or related rights. Although the German legislature has excluded the liability of the access intermediary for injunctive relief in Section 8 subsec. 1 sentence 2 TMG nF, it has at the same time provided in Section 7 subsec. 4 TMG nF for a claim against the operator of an Internet access via WLAN aimed at blocking access to information. This provision is to be developed in conformity with the Directive so that the right to block can also be asserted against providers of wired internet access. The claim for blocking measures is not limited to specific blocking measures and can also include the obligation to register users, to encrypt access with a password or - in the most extreme case - to completely block access.
In order to examine the question of whether the plaintiff is entitled to a claim against the defendant for the blocking of information pursuant to Section 7 (4) TMG nF, the Federal Court of Justice referred the matter back to the Higher Regional Court.
Lower courts:
Düsseldorf Regional Court - Judgment of 13 January 2016 - 12 O 101/15
OLG Düsseldorf - Judgment of 16 March 2017 - I-20 U 17/16
Source: Press release of the Federal Supreme Court of 26.07.2018
GoldbergUllrich Attorneys at Law 2018
