Liability of parents for their children in file-sharing?

The Regional Court (LG) Cologne had to decide whether the father of two children aged 16 and 18 years was liable as a disturber to the owner of a copyright work for illegal downloads by a third party.

The father of two children was warned as the connection holder on account of infringement of copyright on the Internet and was called upon to cease and desist and to pay damages. He was accused of having made a copyrighted computer game available on the Internet within the framework of a peer-to-peer network.

The connection holder contended that neither he nor any other person in his household had made the computer game available for downloading. The computers in the household and the WLAN connection were protected by a firewall. Moreover, all computers had antivirus software installed, so that the alleged upload could not have taken place. The computers contained neither the disputed computer game nor file-sharing software. Furthermore, all family members had been regularly instructed that participation in Internet exchange platforms was not permitted.

The rights holder was of the opinion that the connection holder was liable at least as a disturber and therefore the claimed damages were to be paid.

Decision of the court

By Judgment of 11.09.2012 – Az. 33 O 353/11 – the Regional Court (LG) Cologne dismissed the software manufacturer's action.

The claims of the injured rights holder were directed in the first instance against the person who had committed the infringement himself. No sufficient factual evidence was presented in the present case for such personal conduct of the father. Even if the identification of the connection holder gave rise to a presumption of perpetration, this did not result in a reversal of the burden of proof. Rather, this assumption is rebutted and the basis for the presumption is eliminated if circumstances exist from which there arises a serious possibility of a different sequence of events – namely the sole perpetration by another user of the Internet connection. For this purpose, it will generally be sufficient if household members
of the connection holder – such as his spouse or their children – have independent access to the Internet connection.

Conclusion

A blanket conviction of the connection holder in file-sharing matters does not correspond to applicable law, so that it is certainly worthwhile to defend oneself accordingly in individual cases. In particular, if the connection holder did not commit the infringement himself, one should defend against the received cease-and-desist letter.