27. June 2014
WILDE BEUGER SOLMECKE has had further success, this time in defending a file sharing claim brought by the German law firm Sasse & Partner. The court found that provided certain requirements are met, holiday home owners are not liable for the copyright infringements committed by tenants.
File sharing claim
The county court in Hamburg, Germany, rejected a file sharing copyright infringement claim brought by Sasse & Partner (case ref. 25b C 924/13).
The German law firm, Sasse & Partner, had brought the claim for compensation against our client and on behalf of Splendid Film after the feature film “The Last Stand” was allegedly shared via our client’s internet connection. The law firm requested payment of the sum of €1,255.50 including legal costs.
However, the only people who had access to the internet connection were tenants of a holiday apartment which our client let to national and international holiday makers. Upon entry to the apartment, our client had informed every person staying about the requirements to comply with German law, in particular in relation to the use of the internet.
The tenant who had access to the internet connection during the period in which the copyright infringement was committed, admitted to having exchanged the film.
The court therefore had to determine whether the apartment owner was liable for a breach of duty of care and whether the connection owner could be treated like an internet service provider, in which case, a breach of duty of care would be excluded.
Under § 8 Telecommunications Act (TMG), service providers cannot be held liable for transferring or providing access to foreign content on a communication network, provided they did not initiate the transfer.
Landlords benefit from service provider privilege
The court came to the conclusion that § 8 TMG does apply to holiday apartment landlords. According to the court, as holiday home landlords provide their tenants with access to the internet, they should benefit from the privilege that applies to service providers. The court reasoned that such landlords have just as little opportunity for monitoring the use of the internet connection as service providers.
Breach of duty of care
Furthermore, the court found that our client had not breached his duty of care to monitor and secure the connection. The wireless connection was secured and the instructions given to the tenants were sufficient, the court held.
The judges even went so far as to question whether it is incumbent on landlords in such cases to issue instructions to holiday makers. However, the question was left unanswered, as in this case, instructions had been issued.
It is interesting to note that the instructions given to tenants need not be modified to suit their nationality. According to the court, tenants who are abroad in Germany must comply with the German legal customs.
German lawyer and partner at WILDE BEUGER SOLMECKE, Christian Solmecke, commented, “The court’s decision follows the Federal Court of Justice’s case law, which strikes a balance in relation to the liability of connection owners for third party copyright infringements.”
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