File-sharing lawsuit by Waldorf Frommer dismissed

The Local Court (AG) Munich has dismissed a lawsuit concerning alleged illegal file-sharing and has taken a critical stance on the legal principle of the "presumption of actual involvement" in this context.

The copyright holder of a music album, who was represented by the law firm Waldorf Frommer, had sent a cease-and-desist letter to the holder of an internet connection, through which a copyright infringement had been committed, cease-and-desist letter. After the connection holder had issued a declaration of discontinuance but had refused to pay the asserted cease-and-desist costs and damages, proceedings were filed.

The connection holder was demonstrably at work and not at home at the material time when the unlawful download of the music files took place. Both his adult daughter, who lived with him, and his adult step-son, who was in possession of a key to the apartment and visited regularly, both had actual access to the computer and internet connection at the material time of the alleged offence.

Court decision

The AG Munich dismissed the lawsuit directed at damages and reimbursement of cease-and-desist costs by judgment of 07.05.2014 – Az. 171 C 24437/13.

In the court's view, the interpretation and implementation of the legal principle of the "presumption of actual involvement" created by the BGH constituted the crux of the proceedings, but caused the responsible judge "various difficulties".

For in his view, it was neither demonstrated nor otherwise apparent from which factual circumstances the conclusion was drawn that a presumption of actual involvement would speak in favour of the internet connection holder being responsible for an established infringement of rights. The court was not aware of any studies or other scientific investigations in which the user behaviour of connection holders and other persons with factual access possibilities had been examined. Finally, in the judge's full conviction, the thesis that regularly the connection holder would primarily use his internet connection first and foremost went against the reality of life.

However, finally the court, after conducting a comprehensive review and weighing all the circumstances of the individual case, became convinced that the presumption of actual involvement, which exists to the detriment of the defendant connection holder, was at any rate sufficiently shaken.

Since the defendant connection holder was not present at the time of the incident, he cannot be expected to provide a substantiated statement as to which other person used his connection at the time of the incident.

The decisive factor in the court's view was the combination of the proven absence of the defendant connection holder at the time of the incident in conjunction with the possibility of use by two other persons. There was therefore a factually proven possibility of an alternative sequence of events, and the court considered this alternative more probable than the sequence of events covered by the presumption of actual involvement.

Any other assessment would – according to the court – amount to strict liability, for which there are no points of reference under the applicable statutory law. The problem that copyright holders such as the plaintiff find it difficult to enforce their legitimate claims against a specific person, particularly in households where several persons live together and share an internet connection, would need to be addressed from a legal policy perspective if necessary.

Conclusion

Despite the "presumption of actual involvement" to the detriment of the connection holder created by the BGH, there are in principle – even before Munich courts – good prospects of obtaining a judgment dismissing the lawsuit in favour of an internet connection holder connection holder wrongly called to account.