File Sharing

Can you be liable if you don’t know what file sharing is?

A court in Germany has held that if a person does not know what file sharing is they cannot be held liable for related alleged copyright infringements.

If you don't know what file sharing is you cannot be held liable for related copyright infringements  © Benjamin-Duda-Fotolia

If you don’t know what file sharing is you cannot be held liable for related copyright infringements © Benjamin-Duda-Fotolia

File sharing

In this case, which was represented by our colleague Sievers, the court was tasked with deciding on the legal presumption of guilt in file sharing cases (Az.: 207 C 175/13).

This presumption generally dictates that if a copyright holder accuses an internet connection owner of breaching copyright by exchanging copyright-protected files on file sharing websites, the connection owner is automatically presumed to be guilty.

The connection owner can rebut this presumption by sufficiently demonstrating that some other explanation may apply; for example that other members of the household may have committed the copyright infringement. Although there is no obligation to directly incriminate other persons or produce concrete evidence.

In this case, the connection owner spoke little German and had almost no technical knowledge. Indeed, she did not even know what file sharing was and she did not use a PC.

At the time of the alleged copyright infringement the connection owner’s two adult children were present in the household and had access to the internet connection.

The court took the view that the woman had sufficiently demonstrated that, besides her having committed the infringements, there were other possible explanations for how they occurred. As a result she succeeded in rebutting the presumption of guilt.

Rebutting the legal presumption of guilt

In particular the court stated:

“The defendant has provided sufficient evidence to rebut the presumption of guilt. Not only has she disputed being the perpetrator [of the copyright infringement], but she has also sufficiently demonstrated that there are facts which provide a contrary explanation for how the infringements were committed. The defendant need not go any further in order to defend herself against this claim.

“In particular the defendant is under no obligation to conduct her own investigations or to directly accuse any other person, let alone members of her own family, of committing the alleged copyright infringement.

“It should also be taken into consideration that, similar to primary evidential obligations, when fulfilling secondary evidential obligations defendants may only assert facts of which they have actual knowledge (§ 138 German Civil Procedure Rules).

“Considering general life circumstances, it can be assumed that a defendant may lack knowledge of their children’s activities, and in particular their children’s internet use. The defendant’s assertions do not exceed those expectations.”

As strict liability could also be ruled out in this case, the court rejected the copyright owner’s claim completely. The judgment is not yet legally binding.

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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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