20. November 2013
The days when the courts of Munich were seen as copyright-holder friendly, seemingly waving through file sharing claims without affording them proper judicial scrutiny, appear to be finally over.
File sharing claim
The county court in Munich appears to have taken a new direction on file sharing claims.
In a case concerning a defendant represented by WILDE BEUGER SOLMECKE, the court rejected the music label’s claim for breach of copyright (case ref.: 155 C 9298/13). The claimant was represented by lawyers at the law firm, Waldorf Frommer.
The claimant accused the defendant of committing copyright infringements by making copyright-protected material publicly available through file sharing software. The claimant demanded compensation calculated in accordance with the licence analogy method and legal costs.
The defendant’s partner and 17 year-old son (a minor) had independent access to the internet connection during the timeframe when the alleged copyright infringement was said to have taken place.
Presumption of guilt rebutted
The court held, in accordance with the case law of Germany’s Federal Court of Justice (Bundesgerichtshof), that the circumstances of the case alone were sufficient to rebut the presumption of guilt for the accused.
Based on the facts presented, there was a real possibility that the alleged copyright infringements had been conduct by someone other than the internet connection owner (namely his son or partner). The court ruled that the defendant was not under an obligation to present concrete evidence as to who was using the internet connection at the time of the supposed copyright infringements.
The court clarified that the fact that the defendant claimed to regularly check the computer for file sharing software, was however not sufficient to automatically absolve the partner or son from responsibility, as it is conceivable that the software had been deleted after the infringement, or was so well hidden that it could not be found.
No obligation to bring proof
On the question of the burden of proof the court turned to the case law of Munich’s Regional Court commenting that:
“Any dispute the claimant may have as to the access the connection owner’s family members had to internet is devoid of substance. The connection owner is not obliged to prove the truthfulness of his assertions that other persons had access to the internet connection.”
No strict liability in nuisance
Turning to the question of strict liability in nuisance, the court stated:
“Where there are no indications giving rise to cause for concern, the defendant is not under an obligation to monitor his partner’s computer use or to give her directions on avoiding file sharing.
“There is no need to determine whether the defendant gave directions to his child on using the internet. So long as the defendant’s partner continues to come into question as the perpetrator, one cannot be certain that the defendant’s breach of duty, which would have come about as a result of failing to give directions to his son, was a causal link to the disputed copyright infringements.”
With this judgment, the county court in Munich has accepted for the first time in a long time, WIDLE BEUGER SOLMECKE’s position on the burden of proof in file sharing cases.
It remains to be seen whether Waldorf Frommer will make good on their announced intention to appeal the judgment.
But for now, it justified hope remains that not only the courts in Munich but also other German courts will follow this U-turn and conduct proper judicial scrutiny of file sharing cases.
You can read the full judgment, in German, here.
You may also be interest in this essay on the burden of asserting facts and the burden of proof in file sharing cases here: Aufsatz MMR.
- File Sharing – Frequently Asked Questions
- The presumption of guilt in file sharing cases
- Rebutting the presumption of guilt in file sharing cases
- File sharing: connection-owner-friendly case law develops further
- File sharing: internet user escapes liability
- File sharing: do parents have to monitor their children?
- File sharing: parents can breathe a sigh of relief
- Success for WILDE BEUGER SOLMECKE at Federal Supreme Court
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Categories: File Sharing