Filesharing lawsuit from law firm Negele dismissed

The Local Court (AG) Munich had once again to decide how far the secondary burden of presentation of an internet connection holder extends. Furthermore, the Local Court (AG) ruled on the question raised in the context of a counterclaim as to whether it constitutes abuse of rights to assert three different copyright infringements of the same day for the same rights holder in the context of three separate cease-and-desist letters.

The law firm Negele, Zimmel, Greuter, Beller from Augsburg sued our client on behalf of DBM Videovertrieb GmbH on account of the provision of three pornographic film works on the same calendar day on the Internet via a peer-to-peer network. Previously, the attorneys had issued cease-and-desist letters to our client with three separate notices of the same day and demanded cessation as well as payment of damages.

In the constellation existing in this case, we were able to argue on behalf of the family man that he had not committed the infringements himself. At the times of the infringements, he had switched off his computer and had neither filesharing software nor the films in dispute on his computer. Furthermore, in addition to the connection holder, his wife and his adult son also had access to his internet connection and were within the access area of the connection at the time of the alleged infringement.

After submission of a declaration of cessation subject to a penalty clause without prejudice to the merits and legal situation, the corresponding cessation claims of DBM were satisfied, our client was sued for payment of the cease-and-desist letter costs and payment of a license damages claim. In this regard, EUR 500.00 licence fee per work was asserted as a partial claim and it was stated that the licence to be paid for each of the pornographic films offered here amounted to at least EUR 1,000.00.

In addition to seeking dismissal of the claim, we alternatively requested on behalf of our client that it be established that the licence fee for the works in dispute does not by any means exceed an amount of EUR 500.00. In addition, we filed a counterclaim on behalf of our client on account of abuse of rights in respect of the three cease-and-desist letters received, with the aim of recovering the out-of-court costs incurred for the defence on behalf of our client.

Decision of the Court

The Local Court (AG) Munich dismissedJudgment of 22.10.2014 – Az. 155 C 15779/13 – the claim and thus denied both principal and secondary liability of the connection holder.

He satisfied his secondary burden of presentation by submitting that other persons and, if applicable, which other persons had independent access to his internet connection and could be considered as perpetrators of the legal infringement.

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The defendant made sufficiently detailed submissions, verifiable as to plausibility, on the following points: identification of the specific users entitled to access in the period in question, number of own-use PCs in the household, general usage behaviour of the users entitled to access, type and scope of protection of the W-LAN connection against interference by unauthorised third parties, presence of the users entitled to access, scope of investigations.

Following the BearShare decision of the Federal Court of Justice (BGH) (we have reported), the defendant was moreover not liable as a secondary participant for the alleged legal infringements.

The Local Court (AG) Munich also rejected the counterclaim. The court is of the opinion that the sending of three parallel cease-and-desist letters is reasonable, as it was not apparent at that time whether the connection holder might admit individual infringement actions, but dispute others and might satisfy his secondary burden of presentation with respect to individual disputed infringement actions.

The alternative claim (declaratory action) was not decided due to the condition not being met.

Conclusion

The judgment once again demonstrates that it is well worth it for internet connection holders wrongly called upon to defend themselves. In particular, following the BearShare judgment of the Federal Court of Justice (BGH), liability of the connection holder as a principal and secondary participant is excluded in many constellations.

Unfortunately, however, the Local Court (AG) Munich does not consider it to be abuse of rights that cease-and-desist law firms assert different legal infringements of the same calendar day for the same rights holder with different cease-and-desist letters and in doing so respectively demand corresponding cost reimbursement. The reasoning of the Local Court (AG) here is not convincing. After all, differentiated presentation of the infringements by the connection holder would have been possible if the infringements had been asserted in one letter.