A brief introduction to file sharing: this is the practice of distributing or making accessible digital media. This is done through peer-to-peer file sharing, cloud-based file hosting services and direct file transfer. In file sharing, copyrighted material is often shared without permission.

Owners of copyrighted material are increasingly commissioning companies to monitor the relevant platforms in order to prevent and prosecute file sharing, particularly under civil law. In some cases, large sums of damages are involved.

However, it is often only possible to prove that a specific internet connection (e.g. a Wi-Fi network) was used for file sharing. However, the person who owns the connection (connection owner) does not have to be the sole user of the connection at the same time. In principle, the owner of the connection is not generally liable for damages for copyright infringements committed with his connection.

Excursus: Burden of presentation and proof in civil law

According to general principles of civil law, the claimant bears the burden of presentation and proof that the requirements of the claim asserted by him for damages, for example, have been met. Accordingly, it is generally up to the claimant to demonstrate and prove that the owner of the connection is the perpetrator or participant in the copyright infringement alleged by them.

Special case: file sharing

In cases of file sharing, however, it is often almost impossible for the claimant to prove this on a factual level. For this reason, the Federal Court of Justice has developed a factual presumption in its case law. This factual presumption speaks for the perpetration of the connection owner if no other persons were able to use this Internet connection at the time of the infringement.

This factual presumption is excluded if there was a possibility of use by third parties. This possibility of use by third parties can be assumed if the Internet connection was not adequately secured at the time of infringement or was deliberately made available to other persons for use.

So does the owner of the connection have to accept responsibility for everything?

A presumption can also be rebutted. This is where a secondary burden of presentation and proof (DBL) of the connection owner comes into play. This secondary DBL is precisely not a reversal of the burden of proof and also not an obligation of the owner of the connection to provide the claimant with all information required for the success of the lawsuit over and above the procedural duty of truth and burden of explanation (Section 138 (1) and (2) ZPO).

Instead, the subscriber must state whether other persons and, if so, which other persons had independent access to their Internet connection and could be considered as the perpetrators of the infringement. However, this burden of proof also has its limits. The owner of the connection cannot be expected to check the end devices of family members for file-sharing software, for example. On the other hand, there may be an obligation to state whether file-sharing software was used on your own computer.

In the end, however, according to § 286 ZPO, it always depends on whether the court, under free evaluation of evidence, comes to the conclusion that the perpetration or participation of the connection owner is overwhelmingly probable. However, the court’s conviction may conflict to a certain extent with the presumption of the connection owner’s perpetration:

It becomes interesting when other third parties are initially considered in addition to the connection owner, but none of these third parties can be assumed to be the perpetrator. One could now take the view that, in the absence of other (potential) perpetrators, the presumption of perpetration by the owner of the connection is “revived”. It is conceivable that in such cases the owner of the connection is liable due to the principle of exclusion of other possible perpetrators and witnesses. However, this is not a necessary result. Rather, the presumption of perpetration by the owner of the connection can continue to be rebutted in accordance with a corresponding conviction of the court. This would still rule out liability due to the perpetration or participation of the connection owner.

Connection owner not automatically responsible as perpetrator for copyright infringements

In summary, it can be said that a connection owner is not automatically responsible as the perpetrator for copyright infringements that occur from their network. However, there is a factual presumption that the subscriber is the perpetrator if no other persons were able to use the internet connection at the time of the infringement. However, this presumption does not apply if there was a possibility of use by third parties.

The recent judgment of the Düsseldorf District Court (judgment of December 15, 2022 – 10 C 102/20) is worth reading, especially with regard to the conflict between the court’s conviction and the presumption of the connection owner’s perpetration.