WBS succeeds against Schulenberg & Schenk | File sharing

WILDE BEUGER SOLMECKE has succeeded in another file sharing case, this time against the German law firm Schulenberg & Schenk.

File sharing: WBS succeeds against Schulenberg & Schenk © Benjamin-Duda-Fotolia

File sharing: WBS succeeds against Schulenberg & Schenk © Benjamin-Duda-Fotolia

File sharing success

WILDE BEUGER SOLMECKE has won another file sharing case, this time against the German law firm Schulenberg & Schenk. The court rejected Schulenberg & Schenk’s file sharing claim in its entirety (case ref. 3b C 145/14).

Warning letter

Our client had received a warning letter from i-catcher media GmbH & Co. KG accusing him of infringing German copyright law by exchanging the film “Break – No Mercy, Just Pain” on a file sharing website.

The company demanded the payment of a licence fee amounting to almost €200 and the reimbursement of legal fees of over €650.

Incorrect investigation software

The lawyers at WILDE BEUGER SOLMECKE argued that the investigation of the file sharing activity had been conducted incorrectly. The court agreed, stating that the software used to log the copyright infringement, called “Observer”, was not reliable enough, as it had not been independently verified before use.

Presumption of guilt rebutted

The court also rejected Schulenberg & Schenk’s claim on the basis that the defendant had succeeded in rebutting the presumption of guilt. Here, the defendant had asserted he was not at home when the copyright infringement was committed and that other members of the household, including his wife and two adult daughters, had had access to the internet connection.

The court’s decision on this aspect is welcomed and follows the case law set by Germany’s Federal Court of Justice (Bearshare judgment from 08.01.2013, IZR 169/12).

No breach of duty of care

There was also no basis for finding that the defendant had breached a duty of care. All members of the household were adults and as none of the family members had previously drawn attention for file sharing, there was no requirement for the internet connection owner to especially monitor the connection.

Here is the full text of the judgment.

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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