File-sharing: When the child is the perpetrator

Another decision from the Federal Court of Justice (BGH) concerning the liability of the internet connection holder in cases of illegal file-sharing has been handed down. The Bundesgerichtshof addressed the question this time of whether the holder of a family internet connection must "betray" his child if he knows that the child has committed the copyright infringement by means of file-sharing software.

The holder of the rights of exploitation in the music titles contained on the music album "Loud" by the artist Rihanna sued internet connection holders for copyright infringement. The music titles of the album were allegedly made publicly accessible via the internet connection of the defendants through file-sharing.

The connection holders disputed having committed the act and pointed out that their three adult children living with them each owned their own computers and had access to the parents' internet connection. Furthermore, the parents stated that they knew which of the three children had committed the infringing act. They provided no further details.

The Regional Court (LG) Munich I and also the appellate court (we reported) ordered the parents to pay damages. They filed a revision against the judgment of the Higher Regional Court (OLG) Munich.

The decision of the Federal Court of Justice (BGH) on the burden of proof

The revision of the connection holders was unsuccessful. The Bundesgerichtshof dismissed the revision with judgment of 30.03.2017 – Az. I ZR 19/16 – Loud (press release) .

The BGH explained that the connection holder is obligated within the framework of the so-called secondary burden of proof to conduct investigations and to disclose what knowledge he has thereby acquired regarding the circumstances of a possible infringing act.

In order to meet the secondary burden of proof, according to the court in Karlsruhe, the name of the family member must also be stated if it is known who committed the copyright infringement. Otherwise, the connection holder himself will be held liable. The disclosure of the name is also reasonable taking into account fundamental rights – the right to intellectual property on the one hand, protection of the family on the other.

Conclusion

If the connection holder knows that his child has committed the copyright infringement, he is obligated to name the child by name in order to exonerate himself. If he does not disclose the name of the child, he himself is liable.