No damages for file sharing via WLAN

Cease and desist letters regarding unauthorised downloads of music, film, audiobooks or other copyright-protected content are sent daily by rights holders and their legal representatives to the holder of the internet connection. However, these infringements were often not committed by the connection holder himself, but by his family members, co-residents or even unknown third parties.

With the assistance of the public prosecutor's office, it was established that the musical track 'Sommer unseres Lebens' was downloaded from the defendant's WLAN connection via a peer-to-peer file-sharing service and subsequently made available again on the internet. However, the defendant was not at home at the time of the copyright infringement and therefore could not have committed the infringement himself. He was able to prove that the copyright infringement could only have occurred through misuse of his WLAN connection. He therefore refused to issue a declaration of discontinuance and to pay damages.

Decision of the Court

As a rule, the sender of the cease and desist letter cannot demand damages from the connection holder if the latter has not adequately password-protected his wireless internet connection. This was decided recently by the Federal Court of Justice (BGH) in itsjudgment of 12.05.2010 – Az. I ZR 121/08.

The Federal Court of Justice (BGH) held that the defendant cannot be held liable as a perpetrator or accomplice in a copyright infringement if third parties misuse an unsecured WLAN connection for file sharing, since such liability requires fault on the part of the defendant. Private connection holders are obliged to examine whether their WLAN connection is protected by appropriate security measures against the risk of being misused by unauthorised third parties to commit copyright infringements. However, private operators of a WLAN network cannot be expected to continuously update their network security to the latest state of the art and to expend corresponding financial resources for this purpose. Their obligation to examine therefore relates to compliance with security measures that are customary in the market for the private sector at the time of installation of the router.

Conclusion

Private connection holders who use WLAN must apply the security measures that were customary in the market at the time of purchase. In order to avoid liability, one must change the factory default settings and in particular replace the password specified by the manufacturer with a sufficiently secure new password. If these security measures are omitted, the connection holder is liable as a responsible party (Störer) for discontinuance and reimbursement of the costs of the cease and desist letter.