File sharing: Internet connection holder's spouse's computer need not be investigated

An internet connection holder is subject to a secondary burden of pleading in the event of illegal file sharing. The Federal Court of Justice (BGH) has now ruled on whether it is reasonable for the connection holder to examine his spouse's computer with regard to the existence of file-sharing software.

A connection holder was accused of making the film "Resident Evil: Afterlife 3D" available to other users via a file-sharing platform on the internet.

The connection holder disputed the accusation and pointed out that his wife independently used the internet connection. The connection holder did not examine his wife's computer. Furthermore, he pointed to a serious security vulnerability in the router which gave third parties the opportunity to gain unauthorized access to his Wi-Fi connection.

The Local Court (AG) Braunschweig dismissed the action.

In the second instance before the Regional Court (LG) Braunschweig, the connection holder's wife was examined as a witness. She confirmed that she also used the connection, but she denied committing copyright infringement by means of file-sharing software. The Regional Court (LG) Braunschweig rejected the plaintiff's appeal.

The plaintiff failed both in first and second instance. The Federal Court of Justice (BGH) also rejected the plaintiff's appeal.

The Federal Court of Justice (BGH) decision

The BGH confirmed by way ofJudgment of 06.10.2016 – Az. I ZR 154/15 – "Afterlife"the court of appeal's view that the defendant connection holder had met the burden of pleading by naming his wife as a co-user and specifically submitting information about the router used and the security vulnerability existing in it.

Furthermore, the connection holder is not obliged to identify the perpetrator of the infringement and name him. Nor must he examine his wife's computer or submit specific information about his own periods of absence and those of the co-user.

The unreasonableness of further investigative obligations was justified by the fundamental right protection of marriage and family.

Conclusion

The BGH thus confirms that an internet connection holder must demonstrate in fulfilling his secondary burden of pleading whether and which other persons had independent access to his internet connection. However, he need not search his family members' computers for file-sharing software.