File sharing

WBS succeeds against Schulenberg & Schenk again | File sharing

WILDE BEUGER SOLMECKE has successfully defended a file sharing case against German law firm Schulenberg & Schenk. The county court in Frankfurt rejected Schulenberg’s claim in its entirety (case ref. 29 C 1513/13).

WBS successfully defends file sharing case ©-cirquedesprit-Fotolia

WBS successfully defends file sharing case ©-cirquedesprit-Fotolia

File sharing claim

WILDE BEUGER SOLMECKE has successfully defended a file sharing case brought by the German law firm Schulenberg & Schenk.

The county court in Frankfurt referred several times to an essay published by WBS criticising the inconsistent case law in relation to the burden of proof in file sharing cases (MMR 2013, 217).

Facts of the case

A creator and producer of pornographic films instructed Schulenberg & Schenk to send a copyright infringement notice to our client claiming compensation. The producer asserted that our client had illegally made a film available for download via a file sharing website.

Claim rejected

The court rejected the claim in its entirety for the following reasons:

  • Firstly, our client was able to prove that she had taken all reasonable steps to secure the internet connection.
  • Secondly, she was able to sufficiently demonstrate that at the time of the alleged copyright infringement, her husband and his two children all had independent access, with their own computers, to the internet connection.
  • Thirdly, our client was able to convince the court that she had informed the children about using the internet connection.

The court found that there were no concrete indications to show that the internet connection was being used illegally and as a result there was no need to have expected our client to fulfil a higher burden in relation to monitoring the connection and instructing the family members.

The opposition still has the possibility of raising an appeal.

Summary

  • If a connection owner can prove that there is a real possibility, that at the time of the alleged copyright infringement, the internet connection was being used by another person, the accused cannot be held liable as a perpetrator.
  • The possibility that the infringement could have been conducted by another person is sufficient. Such a possibility is always present if other family members have independent access to the internet connection.

  • Connection owners can only be held liable in nuisance if they fail to fulfil their due diligence obligations. The extent of the due diligence obligations vary depending on whether there are concrete indications that the connection is being used by others to commit legal infringements.

Connection owners must regularly inform children about how to use the internet connection legally. They are not, however, under a general obligation to monitor their children.

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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