BGH rules on file sharing: Parents are liable for their children

Three proceedings on file sharing - three successes for the music industry. Absence on vacation, false searches and parental liability were the topics.

A success for the recording companies across the board – there is (unfortunately) no other way to summarize the outcome of the file sharing proceedings. The First Civil Senate of the Federal Court of Justice today confirmed claims for damages and reimbursement of warning costs in three proceedings due to allegations of file sharing.

So far, only the press release is available. As soon as the reasons for the judgment are available, the reasoning can be examined in more detail.

1st legal dispute – or: We were on vacation!

In the first legal dispute (case reference: I ZR 75/14), the family claimed to have been on vacation at the alleged time of the crime. Before going on vacation, the router and computer had been disconnected from the power grid. The Cologne Higher Regional Court did not believe this. The BGH also considered it unconfirmed that all technical devices, in particular the router and computer, had been disconnected from the power supply.

It could not be demonstrated that other persons had independent access to the Internet connection at the time of the offense. Thus, the actual presumption of the perpetration of the owner of an Internet connection applies.

2nd legal dispute – or: The research was wrong!

In the second proceedings (case reference: I ZR 19/14), the defendant disputed the accuracy of the software company’s searches and the information provided by the internet provider and denied that he or a family member living in his household had offered the music files for download.

The BGH did not accept this. The accuracy of the investigations by proMedia and the internet provider was established – and it was also concluded that the music titles had been made available for downloading via the internet connections assigned to the defendants as connection owners. The theoretical possibility that errors can also occur in the investigations by proMedia and the internet provider does not speak against the probative value of the investigation results if no specific errors are presented in the individual case that speak against their correctness. A wrong letter in the reproduction of a name in an information table is not sufficient in this respect.

3. legal dispute – or: It was instructed!

The third legal dispute (case reference: I ZR 7/14) concerned the mother’s liability for her daughter’s mistakes in accordance with Section 832 para. 1 sentence 1 BGB. This is an exciting area that is a constant source of discussion in file sharing lawsuits. This time with a defeat for the mother.

When questioned by the police, the daughter admitted that she had downloaded the music files. The mother objects to the use of her daughter’s police confession and claims to have instructed her about the illegality of participating in music file sharing networks.

The BGH considers the mother to be responsible for the damage caused by the infringing act of her then underage daughter pursuant to Section 832 para. 1 sentence 1 BGB. It is true that parents would regularly fulfill their duty to supervise a normally developed child who obeys their basic commands and prohibitions by instructing the child about the illegality of participating in Internet file-sharing networks and prohibiting the child from doing so. Such instruction could obviously not be proven; the fact that the mother may have established general rules of “proper conduct” for her children is not sufficient in this respect.

Furthermore, the BGH confirmed its Morpheus case law (BGH, judgment of November 15, 2012 – I ZR 74/12, GRUR 2013, 511 para. 24 – Morpheus). Parents are not obliged to monitor the child’s use of the internet, to check the child’s computer or to (partially) block the child’s access to the internet. Parents are only obliged to take such measures if they have concrete evidence that the child would violate the prohibition.

File sharing is expensive: €200 per title

When assessing the damages in the form of a license analogy, the Court of Appeal did not err in law in assuming an amount of € 200 for each of the 15 music titles included in the calculation of damages. Finally, the Court of Appeal also rightly assumed a claim for compensation for warning costs and calculated the amount on the basis of the German Lawyers’ Fees Act.

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