Cologne Higher Regional Court, 16.05.2012, Ref.: 6 U 239/11
We have often reported on interesting judgements in the area of file sharing here:
Copyright law: Parents are liable for their children's file sharing.
Copyright law: IP addresses of file-sharing users are not personal data
With regard to warnings due to file sharing on the Internet, the doctrine developed in tort law (Sections 823 et seq., 1004 BGB) is generally applied.
The general tort law of the German Civil Code (BGB) basically provides for two elements of attribution:
- Perpetrator liability: The liability of the person acting
- Interference liability: The liability of the person who made the copyright infringing act of a third party possible.
According to this case law, the offender is therefore the person who (directly) downloaded the file from the Internet or offered it for download and the disturber is the person who, for example, provided the WLAN network via which the file was downloaded or offered by third parties (e.g. parents, flatmates, etc.).
The distinction between offenders and interferers is particularly relevant because offenders are obliged to pay damages to the respective rights holder in addition to the reimbursement of warning costs, whereas interferers only owe the reasonable lawyer's fee (i.e. no damages).
The distinction is also important because the cease-and-desist declarations that are also sent in addition to the warning letters are regularly based on the fact that the addressee of the warning letter is the offender within the meaning of this case law.
However, if the addressee is only a disturber, the cease-and-desist declaration must also be duly amended to this effect (modified cease-and-desist declaration).
In the above-mentioned decision, the Cologne Higher Regional Court now had to decide on the question of when an internet connection owner is liable for copyright infringements committed by the spouse sharing the connection.
Facts of the Case A computer game was offered for download on two days via the internet connection of the defendant's wife. The owner of the rights to this game then sent the defendant a warning letter.
The defendant did not accept the warning but objected. In the subsequent legal dispute before the Regional Court of Cologne, the defendant defended itself by claiming that it had not offered the game itself.
Rather, the connection was mainly used by her husband, who has since died.
The Cologne Regional Court nevertheless upheld the claim and ordered the wife to cease and desist and pay damages, including reimbursement of the costs of the warning letter.
Cologne Higher Regional Court: On appeal by the defendant, the Cologne Higher Regional Court has now overturned this judgement and dismissed the action.
One issue in dispute in the trial was the question of who had to demonstrate and, if necessary, prove whether a copyright infringement had been committed by the owner of the connection himself or by a third party (distribution of the burden of proof).
Here, the Senate continued the case law of the Federal Court of Justice that there is a presumption that the owner of the connection was the perpetrator.
However, if the owner - as in this case - demonstrates the serious possibility of a different course of events, the copyright holder must provide evidence of the offence.
Since the plaintiff in the present case had not offered any evidence of the copyright infringement by the defendant wife, it had to be assumed that the computer game had been offered for download by the husband.
Thus, the second question is whether the owner of the connection is also liable for copyright infringements that were not committed by him but by a third party.
In this regard, the court took the view that the mere transfer of the right of joint use to the spouse did not give rise to liability.
This could only come into consideration if either the owner of the connection was aware that the spouse was using the connection for illegal activities (which was not the case here) or if there was a duty of supervision.
Such an obligation to check and monitor is assumed if parents allow their (underage) children to use their connection and these children commit copyright infringements on the internet. However, the monitoring obligation does not apply to the relationship between spouses.
Source: Higher Regional Court of Cologne
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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