File Sharing

File sharing: judge rules family witness statements unreliable

In a questionable judgment on file sharing, a Cologne court has ruled that family witness statements can sometimes be unreliable. As a result, the owner of a family internet connection was held liable for infringing copyright, despite his two sons giving evidence absolving him.

File sharing: judge rules family witness statements unreliable © Benjamin-Duda-Fotolia

File sharing: judge rules family witness statements unreliable © Benjamin-Duda-Fotolia

File sharing accusations

The copyright infringement claim was brought against a father who was the owner of the family internet connection.

The copyright infringement notice accused him of illegally distributing over 200 pieces of copyright-protected music via a file sharing website.

The father shared the cable internet connection with his two sons, who were 17 and 19 years old.

After receiving the warning letter, the father submitted an undertaking to cease and desist.

The father then received a default summons ordering him to pay over €6,000 in costs and compensation.

Guilty of infringing copyright

Although the father and his sons disputed the copyright infringement accusations, the court of first instance found in favour of the copyright holder and ordered the father to pay legal fees and compensation for the loss in royalties (Az. 28 U 346/12).

Unreliable witness statements

The father’s appeal to the Cologne Higher Regional Court was, in a large part, rejected (judgment from 17.01.2014, case ref. 6 U 109/13).

The appeal court found in favour of the copyright holder, stating that the file sharing accusations had been sufficiently proven. The judges viewed the witness statements given by the two sons as unreliable, arguing that they contained unfounded assertions.

Family solidarity

The Higher Regional Court drew this conclusion from the fact that within a family this is mutual trust and a feeling of solidarity.

The court therefore thought it “plausible” that the children had given false testimony. In the court’s opinion, the son’s statement that file sharing “[is] not something his parents would not have wanted [him to do]” showed that he had intended to keep the suspicion of file sharing away from other family members.

The court took this statement as sufficient proof of the son’s tendency to give false evidence.

Assumptions lead to guilty verdict

This assessment of the evidence is not convincing. In file sharing cases, courts cannot be allowed to reach judgments based on assumptions.

The presumption of guilt in file sharing cases, which falls to the detriment of connection owners, must be capable of being rebutted through the statements of witnesses, without those statements being unjustifiably considered unreliable.

Concrete facts on reliability, and not assumptions, are required. At WILDE BEUGER SOLMECKE, we are surprised by this judgment.

After the well-known Morpheus judgment, in which WBS was representing, the Cologne Higher Regional Court had begun to place a lower evidential burden on those accused of file sharing.

It is questionable whether this latest judgment is compatible with the case law of Germany’s Court of Justice. Read the whole judgment here.

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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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