19. March 2013
The landmark “Morpheus” decision by the German Federal Supreme Court (Bundesgerichtshof, BGH) changed the landscape of file sharing and copyright law in Germany. Parents can now breathe a sigh of relief as they will not be held liable for their children breaching copyright through file sharing.
For years the Cologne-based media law firm WIDLE BEUGER SOLMECKE has been defending clients accused of breaching copyright through conducting illegal file sharing. These clients receive warning letters, mainly from the music industry, which contain demands for compensation and reimbursement of legal costs, which together can amount to thousands of euros. The unsuspecting recipient is also prompted to submit a declaration to cease and desist.
Relief for parents
Cases also arose in which parents were being held liable for their children’s actions. They would often have to pay up, even if they had taken steps to prevent their children from using file sharing software. However, this situation was brought to an end in November 2012 after WIDLE BEUGER SOLMECKE led a successful case to the BGH.
In the landmark decision known as “Morpheus” (reached in November 2012), the judges held that parents can no longer be held liable for their children’s breach of copyright, provided they have forbidden their children from using file sharing websites. The court also held that parents are generally not obliged to monitor their children’s online activities.
German lawyer, Christian Solmecke, who represented the parents in the case, had the following to say in an initial assessment:
“How this decision will play out in practice is still unclear. There are numerous questions which remain unanswered: what precise steps must parents take to prohibit their children from using file sharing software? Will parents now have to pass on the burden of defending an expensive claim to their children? What other consequences will there be for children accused of file sharing?
These questions will only be answered once written judgment is published in early 2013. However, our initial assessment of the results from the hearing can be summarised as follows:
What concrete steps must parents take to escape liability?
According to the BGH parents must expressly prohibit their children from using file sharing software. This rule would apply to the average family in which a child is used to following its parents’ orders.
However, parents are not obliged to check whether such software is on the child’s computer.
How can parents prove that they prohibited their children from using file sharing software?
In the Morpheus case it was sufficient for the parents’ assertions to be “believable”. However, to avoid doubt, it is advisable to have a written agreement between parents and their children which addresses the extent to which the internet may be used and which can be produced in evidence to prove that the prohibition existed and that the child knew about it.
WILDE BEUGER SOLMECKE is currently working on a sample agreement which will be available for download. In the meantime, you may wish to read our File Sharing: Frequently Asked Questions available on our website https://www.wbs-law.de/eng/
Will children now be held liable for copyright infringements?
In theory, it is possible for children who have the ability to appreciate the consequences of their actions to be held liable for breaching copyright. However, the music industry would bear the burden of proving that the child possessed this capability at the time of the breach.
In reality, it can reasonably be assumed that children of 13 – 14 years of age have the ability to appreciate the consequences of their actions, but personal circumstances would play a major part in any assessment.
It is currently unclear whether the music industry would dare to bring claims directly against children.
Should parents now implicate their children if they receive a warning letter?
It remains uncertain how parents will be able escape liability without directly implicating their children in the case. However, an analogy can be drawn to a case heard by the Regional Appeal Court in Cologne. The court found that a wife could not be held liable for having conducted alleged copyright infringements because it could not be excluded that her husband was the person who conducted the infringements. A similar position could develop with regards to parents. They would simply need to show that their children could come into question as a possible perpetrator. They would not, however, need to directly implicate their children in having conducted copyright infringements, but would still escape liability.
Can this case be applied to argue an exclusion of strict liability?
Yes. The BGH rejected both the argument that the parents had directly committed copyright infringements and the argument that the parents should be held strictly liable for their child’s actions. However, to exclude strict liability, parents must fulfil the same requirements as in every other case. Otherwise, contradictions would arise. As such, the steps parents can reasonably be required to take plays an important role. Whether the judgment can be applied in other family situations, such as between grandparents and grandchildren or stepparents and stepchildren, has not yet been clarified. However, it should be applicable to all situations where a duty of supervision arises under §832 German Civil Code, including adoptive parents and legal guardians.
What consequences does the Morpheus decision have for those who have already paid?
Unfortunately, parents who have already paid compensation will not receive reimbursement. Neither can a settlement agreement be revoked.
Will the amount of legal costs change?
As the level of the legal costs being demanded in the warning letter was not in issue, it is likely that the BGH will not express an opinion on the matter.
The BGH’s decision has brought far-reaching changes to file sharing and copyright law in Germany. It would currently be inadvisable for parents who have under-aged children, to enter into settlement negotiations with opposing law firms. WIDLE BEUGER SOLMECKE will continue to report on reactions from copyright holders and law firms which send file sharing warning letters.
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