File sharing: Duty to instruct co-residents?

Does the holder of an internet connection owe a duty to instruct and monitor if this person grants access to their internet connection to adult members of their shared living arrangement, their adult visitors or guests? The Federal Court of Justice (BGH) has now decided this legal question.

The holder of the exclusive exploitation rights to the film "Silver Linings Playbook" sued the holder of an internet connection for damages in the amount of 755.80 € for the unauthorised public making available of the copyright-protected work. The holder of the internet connection refused payment with the argument that she was neither the perpetrator nor a contributory infringer of the alleged copyright infringement, since she did not commit the infringement herself and an internet connection holder does not owe a duty to instruct adult visitors either. Her adult niece living in Australia and her life partner had committed the infringing act at the time of the infringement using the password for the WLAN router provided to them by the holder of the internet connection.

The Local Court (AG) Hamburg dismissed the action. The Regional Court (LG) Hamburg sentenced the holder of the internet connection in accordance with the claim.

Court decision

The Federal Court of Justice (BGH) dismissed the claim of the rights holder by judgment of 12.05.2016 – Az. I ZR 86/15 (Press release) - for lack of an existing duty to instruct.

Contrary to the view of the court of appeal, the holder of the internet connection was not liable as a contributory infringer for copyright infringements committed by her niece and her life partner for purposes of injunction. The only basis for liability that would be conceivable here would be that the holder of the internet connection had not instructed her niece and her life partner about the unlawfulness of participation in internet file-sharing networks. However, such instruction was not reasonably required of the holder of the internet connection without concrete indications of unlawful use of the internet connection.

The holder of the internet connection therefore did not incur liability as a contributory infringer for the copyright infringement through file sharing asserted by the rights holder of the film "Silver Linings Playbook".

Conclusion

The holder of an internet connection is not automatically liable for infringements committed by adult members of their shared living arrangement or for adult visitors or guests to whom they have granted access to their internet connection. This is to be assessed differently only if these adult visitors have given the holder of the internet connection reason to provide such instruction. If this is not the case, the holder of the internet connection is not subject to a duty to instruct and monitor.