New File-Sharing Decisions on the Burden of Pleading?

The BearShare decision of the Federal Court of Justice (BGH) (as we reported) left no doubt that the warned account holder must present his argument within the scope of his secondary burden of pleading only plausibly, but that a burden of proof reversal is expressly not to take place. How far this burden of pleading should extend has since then – in addition to the amount of an appropriate licence damage – repeatedly been the central point of dispute. The Federal Court of Justice (BGH) now appears to have clarified this somewhat.

The Federal Court of Justice (BGH)'s First Civil Senate, responsible for copyright law, was required to review three judgments of the Higher Regional Court (OLG) Cologne in the course of three revision proceedings. In all three cases, claims by leading German sound recording producers were asserted against three different account holders on the grounds of alleged file-sharing and were also granted by the OLG Cologne. In various proceedings, the defendants were each sued for damages of up to EUR 3,000.00 and for reimbursement of warning letter costs.

I.

In the legal dispute with the case reference I ZR 75/14, the account holder disputed the correctness of the software company's investigations. The investigation error was obvious because he and his family had been on holiday at the alleged time of the offence. Before going on holiday, the family had even disconnected the router and computer from the power supply, so that the family's internet connection could not be used in their absence. It was therefore impossible for a copyright infringement to have been committed.

Nevertheless, the account holder was ordered to pay as requested. The OLG Cologne, after hearing a statement from an employee of the software company and from the family members of the defendant, found it proven that the music files had been offered for download from the defendant's computer. The court of appeal did not believe the witnesses' statement that the family was on holiday at the time in question.

II.

In the second case with the case reference I ZR 19/14, the account holder also disputed the correctness of the software company's investigations. While it was undisputed that the computer installed in the warned party's office was switched on and connected to the internet at the relevant time, the account holder argued that he himself had not engaged in file-sharing and that his wife and son had no opportunity to do so. His wife did use his computer, but did not have so-called administrator rights, so she could not have installed the corresponding file-sharing software. His son did not know the password that had to be entered before using the computer.

In this case too, the account holder was convicted as the perpetrator because there was no reason to doubt the investigations and no third party could be considered as the perpetrator of the infringement.

III.

In the legal dispute with the case reference I ZR 7/14, the internet connection was also used by the account holder's 16-year-old son and 14-year-old daughter. She stated that she had instructed her children about the unlawfulness of participating in music file-sharing networks. The daughter admitted to the infringement in a police interview conducted in this case. The account holder objected to the use of the police confession.

The OLG Cologne found that the defendant's daughter had committed an infringement and concluded that the defendant had breached her duty of supervision, so that the account holder was fully liable as the person responsible for supervision for the infringement committed by her daughter.

Court's Decisions

The Federal Court of Justice (BGH) rejected the revisions of the account holders in all three cases (press release). In none of the cases before the court for decision was there reason to doubt the correctness of the investigations.

I.

In the legal dispute I ZR 75/14, the defendant's argument that he and his family had been on holiday and had disconnected the router and computer from the power supply before going on holiday was not proven by the statements made by the account holder's two sons and his wife. The defendant was therefore responsible as the perpetrator of the copyright infringement because he had not shown that other persons had independent access to his internet connection at the time of the offence and could therefore be considered as perpetrators of the alleged copyright infringements. Thus, the rebuttable presumption of the account holder's liability as the perpetrator applied further.

II.

In the second case, the court of appeal was furthermore correct in proceeding on the basis that a theoretical possibility that errors could occur in the investigations did not speak against the probative force of the investigation results. To rebut this, concrete circumstances that speak against the correctness of the investigation result would need to be demonstrated on a case-by-case basis. A wrong letter in the reproduction of a name in an information table – as was objected to in the legal dispute with the reference I ZR 19/14 – was not sufficient in this respect.

III.

In the proceedings I ZR 7/14, the court of appeal was correct in assuming that the defendant's daughter had committed the infringement. This was established by the police interview and the questioning of the daughter by the court. The daughter was properly informed of her right to refuse to testify in each case. The defendant was responsible for the damage caused by the copyright infringement committed by her then minor daughter.

Although parents generally fulfil their duty of supervision over a normally developed child who obeys their fundamental instructions and prohibitions by simply instructing the child about the unlawfulness of participating in internet file-sharing networks and prohibiting him or her from doing so, in the case in dispute the court of appeal was unable to establish that the defendant had instructed her daughter accordingly. The fact that the defendant may have set general rules for her children regarding 'proper conduct' was not sufficient in this respect.

In determining damages in the form of licence analogy, the court of appeal did not err in law by starting from an amount of EUR 200.00 for each of the 15 music titles in total included in the damage calculation. The court of appeal was also correct in accepting a claim for reimbursement of warning letter costs and in calculating its amount on the basis of the Attorneys' Fees Act (Rechtsanwaltsvergütungsgesetz).

Conclusion

The judgments of the Federal Court of Justice (BGH) are not yet available, so only a preliminary assessment can be made. In any case, it can be said that the BGH considers a licence value per music title of EUR 200.00 to be appropriate.

Whether the requirements for the secondary burden of pleading to be borne by the account holder have become somewhat more stringent cannot be clarified without the reasoning of the judgment. In any case, the BGH was already of the view before this that the rebuttable presumption that the account holder is also the perpetrator is only rebutted if it could be shown that at least a third party had access to the warned party's connection at the time of the infringement. Of course, the arguments must also be plausible, which they clearly were not in the case where the family was allegedly on holiday.

However, according to the decisions, it appears that it is necessary for account holders to prove the secondary arguments if the court in the individual case does not believe the argument of the individual account holder. Once the judgments are fully available, we will supplement our statements in this regard.