File Sharing

Berlin court questions jurisdiction rules in file sharing cases

In German file sharing cases claimants are currently free to choose the court in which to bring their claim. For the individuals accused of file sharing, this means travelling many miles to defend their cases. A court in Berlin has now questioned the justification for such jurisdiction rules.

Berlin court questions jurisdiction rules in file sharing cases © Africa Studio - Fotolia.com

Berlin court questions jurisdiction rules in file sharing cases © Africa Studio – Fotolia.com

Jurisdiction in file sharing cases

In this case an individual received a warning letter from the law firm BaumgartenBrandt. The warning letter accused the internet user of having breached copyright law by making copyright-protected material publicly available on a file sharing website.

In an advisory opinion (Az. 6 C 65/13), the county court in Berlin-Mitte informed BaumgartenBrandt, that its choice of court was rejected. Instead, the county court stated that the court with proper jurisdiction to hear the claim was the defendant’s home court.

Court rejects choice of court principle

The court rejected the current practice under which, using a broad interpretation of jurisdiction rules, the so-called “choice of court” principle (fliegender Gerichtsstand) was applied to file sharing cases.

The general position under § 32 of Germany’s Civil Procedure Rules (ZPO) is that jurisdiction is linked to the place where a tort is committed. The view had emerged that that the place of jurisdiction in file sharing cases should be decided in accordance with where a website can be legally downloaded and not where the computer which was used was situated.

The judge, however, declared that such a view is contrary to the purpose of § 32 ZPO.

He drew attention to the fact that jurisdiction for civil wrongs should properly reflect the special relationship between the claim and the location where the wrong was committed (vgl. BGH NJW 2010, 1753). In cases where the internet is concerned there is no particular relationship between a certain location and the claim (vgl. BGH a.a.O), the judge concludes. Moreover, he continues, allowing a choice of jurisdiction would run contrary to § 12 ZPO which establishes a court’s general jurisdiction over all subject-matter concerning persons within its jurisdiction.

Choice of court contradicts parliament’s will

The Berlin court also expressed the opinion that its view reflects parliament’s will.

To support its position the court referred to a new law against unfair business practices which was adopted on 27.06.2013 but has not yet been signed by the president (Bundestagsdrucksache 17/13429).

Wilde Beuger Solmecke supports the view taken by the court. Under § 104a of the amended German Copyright Act – soon to come into effect – defendants in file sharing cases will have to be sued in the jurisdiction where they have their places of residence.

The only acceptable exception to this is when file sharing is conducted for commercial or business purposes.

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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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