File Sharing

File sharing: do parents have to monitor their children?

In November 2012 the German Federal Supreme Court reached the landmark decision that parents are not obliged to constantly monitor their children’s internet usage to prevent copyright infringements. Instead, they must simply warn their children of the dangers of file sharing.

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The Morpheus decision

The so-called Morpheus decision, which has now been published  (Az. I ZR 74/12), was the result of a claim brought by the music industry against a 13 year-old child who had exchanged copyright-protected music files on file sharing websites. On appeal, the German Federal Supreme Court (Bundesgerichtshof, BGH) rejected the claim and denied the music industry compensation and legal costs.

Liability for file sharing

The lower courts originally declared that the parents were liable for their son’s illegal file sharing. They argued that there was concrete evidence that the 13 year-old boy had used file sharing websites and as result, it was presumed that the parents had failed to fulfil their obligations to monitor their child’s internet usage and thus prevent the copyright breaches.

In accordance with § 832 sub-paragraph 1 sentence 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), a person who owes a duty of supervision to a minor is liable for any damage caused to a third party by that minor. This liability can only be excluded when the duty of supervision is fulfilled to a reasonable standard. Parents also have a duty of care towards their children which culminates in an obligation to supervise them (§ 1626 subparagraph 1 BGB).

The courts interpreted these provisions to set a high standard of supervision. They took the view that parents are under an obligation to install security software and to regularly monitor their children when using the internet. This resulted in a higher obligation on parents to supervise their children in the “online world” than in the “offline world”.

Warn against illegal file sharing

The BGH took a different approach. It compared a child’s use of the internet to that of children playing near a road or with fire. The Senate reached the conclusion that the risk of a third party suffering damage from a child breaching copyright through illegal file sharing is substantially lower than the risk of suffering damage caused by a child playing near a road or with fire.

The court clarified its previous decisions explaining that the scope of the obligation to monitor children varies in accordance with the age and character of the child and what can reasonably be expected of the parents

This position supports our view that when parents allow their children to use their internet connection, it is sufficient for them to warn their children of the dangers of committing copyright infringements through file sharing. In our opinion, the content of the warning should be modified to suit the child’s comprehension abilities.

Banning children from using the internet

It was argued by  the opposing law firm in this case that parents should block file sharing websites and use child protection software.

However, the BGH rejected this argument and that of the lower courts that parents should ban their children from using the internet or that they should constantly monitor their children’s internet usage. The court also rejected the need for parents to monitor their children without obvious reason to do so. Indeed, the judges declared that it is unreasonable for parents to foresee the copyright infringements of average children in the absence of concrete indications to the contrary.

Conclusion

The obligations of parents towards their children in relation to copyright infringements through file sharing can therefore be summarised as follows:

Where there are no concrete indications to believe a child is committing copyright infringements, it is sufficient for parents to warn their children about the dangers of exchanging copyright-protected files over file sharing websites. Further measures are not required.

The BGH’s decision brings a welcome end to the case law of lower courts which was originally moving in the direction of making children potentially criminally liable for their internet usage.

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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