File-sharing: Are Parents Liable for Their Adult Children?

According to a recent judgment of the Higher Regional Court (OLG) Munich, parents are liable as line subscribers even for illegal file-sharing by their adult children if they assert that one of the children is responsible for the infringing act but do not identify that child by name.

A sound recording manufacturer had sued because a music album was offered for download via an internet connection whose subscriber was the parents at that time using file-sharing software. The subject matter of the lawsuit was warning letter costs in the amount of EUR 1,000,- and licence damages in the amount of at least EUR 2,500,-.

The defendant parents asserted in the course of their secondary obligation to make submissions that at that time they had lived together with their three already adult children and all had access to the internet connection. Furthermore, the parents asserted that they knew which child was responsible for the infringing act but did not wish to identify that child.

The sound recording manufacturer prevailed already in the first instance. The parents' appeal was also unsuccessful.

Court's Decision on Parental Liability for File-sharing

In its judgment of 14.01.2016 (Az. 29 U 2593/15 – press release of 14.01.2016) the OLG Munich first confirmed that it is fundamentally the responsibility of the claimant – in this case the sound recording manufacturer – to prove that the person from whom it is claiming damages is responsible for the alleged copyright infringement.

However, in the case of file-sharing, there is initially a rebuttable presumption of the culpability of the line subscriber, which establishes prima facie evidence, the rebuttal of which requires more than a mere reference to the possibility of a different course of events. Rather, further circumstances must be present which, if necessary, must be proven by the line subscriber, from which a course of events different from the presumed one should result.

The line subscriber fulfils his secondary obligation to make submissions only if he asserts whether and, if applicable, which other persons had independent access to his internet connection and could be considered as the perpetrator. A blanket assertion of merely theoretical possibility of access by third parties living in the line subscriber's household does not satisfy these requirements. If the line subscriber does not fulfil his secondary obligation to make submissions, the claimant's submissions must be accepted as the basis for the decision. In this case, the line subscriber must then provide evidence to the contrary against the rebuttable presumption.

In the present case, the parents had not fulfilled their secondary obligation to make submissions. It was incumbent on them to provide information about what knowledge they had acquired regarding the circumstances of a possible infringing act, which in their own submission meant which of their children had committed the infringing act. However, they refused to provide this information. In doing so, they merely relied in blanket fashion on a merely generally existing possibility of access by their three children to the internet connection, without providing concrete details about the infringing act.

The fundamental right guaranteed by Art. 6 Abs. 1 GG, according to which marriage and family are under the special protection of the state system, does not preclude this civil procedural obligation, as this does not grant unlimited protection against any kind of interference with family interests.

Finally, in the absence of the parents' rebuttal of the rebuttable presumption, the court found them to be the perpetrators.

Conclusion

In the present case, the parents' submission as line subscribers was not sufficient to rebut the presumption of culpability. In the court's view, the parents should have identified the responsible child specifically. Furthermore, the parents could not successfully rely on constitutional protection of the family. The extent to which the OLG Munich decision is consistent with the requirements of the Federal Court of Justice (BGH) regarding the scope of reasonable investigations in file-sharing cases is questionable. The Higher Regional Court has allowed an appeal to the Federal Court of Justice (BGH). It therefore remains to be seen whether the court will address the statements of the Higher Regional Court.