Liability of the connection holder for file-sharing by spouse?

The Higher Regional Court (OLG) Cologne had to decide whether the connection holder is liable for copyright infringements on the Internet, such as offering copyright-protected works on the Internet (file-sharing), always and vis-à-vis other adult persons with access rights in his household.

In the present case, a computer game was offered for download in an Internet file-sharing exchange on two different days via the Internet connection of the wife. The rights holder subsequently sent a cease-and-desist letter to the connection holder, but she refused to provide a declaration of discontinuance. The wife explained in detail that she herself had not committed any copyright infringement. The Internet connection had been used almost exclusively by her husband, who had since passed away.

The rights holder sued the connection holder for an injunction and damages and was successful at first instance. The Regional Court (LG) upheld the claim and sentenced the wife to an injunction and damages, including reimbursement of the cease-and-desist letter costs.

Court Decision

By means ofjudgment of 16.05.2012 – 6 U 239/11– the Higher Regional Court (OLG) Cologne rejected the rights holder's claim.

Although there was initially a presumption that the connection holder had committed the copyright infringement herself, if the connection holder presented the serious possibility of a different sequence of events, the owner of the copyright had to prove the perpetrator's identity, which in the present case the rights holder failed to do due to insufficient evidence.

Thus the question here was whether the connection holder is also liable for copyright infringements committed by third parties via her Internet connection. In the view of the OLG Cologne, there is no automatism for this.

Liability shall be assumed if the wife had positive knowledge of the violations committed via her connection, or if she had breached a duty to examine and monitor.

Such a duty to examine and monitor shall be assumed when parents allow their connection to be used by their (minor) children and these commit copyright infringements on the Internet. Between spouses, however, such a monitoring duty does not exist, so that the connection holder in the present case is not liable for the copyright infringement.

Conclusion

The question of the liability of a connection holder for an adult household member has not yet been decided by the Federal Court of Justice (BGH). Should the Federal Court of Justice (BGH) decide identically in the revision permitted by the OLG, the Internet connection holder shall be liable for a violation of copyrights by other adult family members only upon knowledge of the copyright infringement, and this only if such knowledge is proven by the party sending the cease-and-desist letter.