The BGH decision of October 6, 2016 (case reference: I ZR 154/15) on file sharing poses an important question for the Munich Regional Court: Is the exclusion of a connection owner’s liability compatible with European law if the connection owner can credibly demonstrate that third parties also had access to the network at the time of the copyright infringement?
ECJ to decide on the interpretation of European copyright law
In order to investigate this legal issue, the Munich Regional Court referred the question of the interpretation of the European regulations to the ECJ in a request for a preliminary ruling dated March 17, 2017.
Hanger of the preliminary ruling procedure: “Afterlife” decision of the BGH
The question was prompted by the BGH ruling from 2016. Liability of the connection owner due to a copyright infringement through file sharing is not mandatory if the connection owner can credibly demonstrate that third parties also had access to the network at the time of the infringement.
In civil proceedings, the burden of proof for facts that form part of the facts of a favorable legal position is always borne by the party in question. Therefore, the author also has the burden of proof that the connection owner himself has committed the copyright infringement. However, such proof is often difficult to provide and the owner of the connection can evade liability.
Internet connection was also used by third parties
The Regional Court’s case is similar to the BGH’s case from October 2016. An audiobook publisher sued the owner of an internet connection for damages. The latter had made one of the publisher’s audiobooks available to other internet users for downloading without authorization by means of file sharing. The owner of the connection denied having committed the infringement. He informed the plaintiff that his parents, among others, also had access to his Internet connection. He was unable to say whether they had also committed the copyright infringement.
According to the BGH, liability for damages on the part of the connection owner is ruled out in this constellation, as third parties can also be considered as perpetrators of the infringement. However, as the action against the parents is also unlikely to be successful, the Chamber has now referred the question to the ECJ: Is the case law of the BGH compatible with European copyright law?
In particular, it is questionable whether such handling of the copyright claim for damages constitutes an effective and dissuasive sanction for copyright infringements by means of file sharing, as required by European law from the member states(Directive 2001/29/EC and 2004/48/EC).
Current BGH ruling does not change the Munich Regional Court’s submission
At the time of the order for reference, the current judgment of the Federal Court of Justice (judgment of 30.03.2017 – I ZR 19/16) had not yet been published. According to this ruling, parents can avoid liability if they can name the infringer known to them – in the case decided, one of their children.
However, this decision does not change the legal situation in the Munich Regional Court case. In this case, the specific copyright infringer was not known.
The judgment of the ECJ remains to be seen. However, it will have an influence on the established case law of the BGH in every respect. Either its position will be strengthened or it will have to deal with the legal situation in a different way.