File sharing

Victory in a filesharing case – internet subscribers not liable if a family member with only “limited PC skills” had access to the computer

In a case before the District Court of Braunschweig (Amtsgericht Braunschweig) where our firm represented the defendant, the court has made it clear that right owners may not impose too stringent demands on the internet subscriber’s defense. It is sufficient to demonstrate that a close relative had access to the shared computer, even if due to their limited PC skills, it seems unlikely they have made the download.

The law firm Waldorf Frommer issued a warning letter on behalf of Tele München Fernseh GmbH + Co. Produktionsgesellschaft. The firm accused the individual, a married man, of having allegedly downloaded the movie “Rad Down” using his internet connection. Damages in the amount of EUR 600 as well as reimbursement of legal fees of EUR 506 were claimed.

However, the man refused any payment and argued he did not commit the alleged copyright infringement as he was at his work place at the time of the alleged download. At this time, it was only his wife in the house.

Waldorf Frommer did not accept this argument and argued in turn that the man’s wife, in his own words, only had limited computer skills. She used the computer only for some research and emails. This alone should not be sufficient to cast doubt on the filesharing accusation against the internet subscriber. Apart from this, she had denied using the computer for any illegal filesharing.

AG Braunschweig rejected liability of the internet subscriber

The District Court of Braunschweig was not convinced of Waldorf Frommer’s arguments though. It decided the man was not an infringer within the meaning of Section 97 (2) 1 of Germany’s Copyright Act (Urheberrechtsgesetz) so damages may not be claimed (judgement of 29 September 2017, Case Ref. 119 C 93/17).

The defendant had done enough with respect to his burden to provide evidence. This is because his wife had access to his computer. Even though it was generally less probable that she made the download considering her limited PC skills and her typical user behavior, the possibility she may have been the infringer cannot be ruled out per se.

As a result, it was up to the plaintiff to provide evidence it was indeed the defendant himself who committed the alleged infringement. However, no such evidence was produced.

A liability in regards to the legal fees resulting from a so called “interferer’s liability” was ruled out as the defendant had secured his wireless network sufficiently. Regardless of this, a specific obligation to instruct or monitor adult family members does not exist anyways.

Possibility of access by family members is sufficient to successfully challenge the filesharing accusation

The decision by AG Braunschweig does not come as a surprise. The Federal Court of Justice (BGH) had already ruled in the “Afterlife” judgment that the potential access to the computer by family members is sufficient to counter the file sharing claim (BGH, judgement of 6 October 2016, Case Ref. I ZR 154/15). This legal view was confirmed by the BGH in another judgment of 27 July 2017, Case Ref. I ZR 68/16).

Acting in line with the newest case law of the BGH, the court in Braunschweig did not consider the fact alone that it was rather unlikely that the family member could have made the download, decisive. The Federal Court had stated that a woman may generally be the infringer even if the download involves a first-person shooter game as a copyright protected work, which is usually played by males. The specific content on which the warning letter is based may not determine the group of potential infringers. Therefore, the Federal Court generally considers it possible that a woman could be the infringer, even if this scenario seems less likely. The same applies in the particular case where limited computer skills make a download by the defendant’s wife less probable.

Apart from this, the fact his wife denied any wrongdoing could not be used against the defendant as she is not expected to “incriminate” herself.

You may read the full decision (in German) at (Link zur Entschedung im Volltext)

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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  1. Holger says:

    Ist die Amtssprache am AG Braunschweig englisch? 😉

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