Liability for illegal file-sharing by adult family members

Is the holder of an internet connection liable for the conduct of an adult family member if he has no indication that this person is misusing the internet connection for illegal file-sharing? The Federal Court of Justice says: No!

A 20-year-old still living in his stepfather's home had downloaded a total of 3,749 music recordings onto his computer via the internet connection of his stepfather using the file-sharing program "BearShare" and made them available for illegal downloading.

As a result, the stepfather, as the holder of the internet connection, was sent a cease-and-desist letter by four leading German record companies that are the holders of the exclusive copyright exploitation rights in the music recordings.

After the stepfather had issued a declaration of intent to cease and desist, but refused to pay the asserted costs of the cease-and-desist letter, the matter proceeded to litigation.

In the course of this action for reimbursement of the cease-and-desist costs, the Federal Court of Justice (BGH) had to decide the fundamental question of whether and under what circumstances a connection holder is liable for copyright infringements committed by an adult family member living in the same household, which this person committed via the internet connection made available to him.

Court decision

The Federal Court of Justice (BGH) dismissed the action against the stepfather as connection holder by means of aUrteil vom 08.01.2014 – Az. I ZR 169/12.

In the case of the provision of an internet connection to adult family members, according to the Federal Court of Justice (BGH), it must be taken into account that the provision by the connection holder is based on family bonds and that adults are responsible for their own actions.

In the view of the Federal Court of Justice (BGH), a connection holder may therefore – against the background of the special relationship of trust between family members and the self-responsibility of adults – allow an adult family member to use his internet connection without having to instruct or supervise this person. Only when the connection holder – for instance due to a cease-and-desist letter – has concrete grounds for the fear that the adult family member is misusing the internet connection for legal violations does he have to take the measures necessary to prevent legal violations.

Since in the present case the connection holder had no indication that his adult stepson was misusing the internet connection for unlawful participation in file-sharing networks, the Federal Court of Justice (BGH) denied liability of the connection holder as a tortfeasor for copyright infringements by his stepson for purposes of injunctive relief, even if he should not have instructed him, or not sufficiently instructed him, about the unlawfulness of participating in file-sharing networks.

Conclusion

A connection holder may allow an adult family member to use his internet connection, even without instructing or supervising this person, as long as there are no indications of misuse of the internet connection for legal violations.