No damages for file-sharing in the absence of proof of infringement

In June 2011, the Regional Court of Stuttgart (LG) dealt with the case 17 O 39/11 with the question of whether claims for reimbursement of expenses or damages exist in cases of alleged copyright infringement as a result of unauthorised use of file-sharing software. In the case in question here, the action was dismissed in full by judgment dated 28.06.2011. The appeal subsequently lodged before the Higher Regional Court of Stuttgart (OLG) was finally withdrawn again.

The decision was based on the following facts:

The claimant held the exclusive online exploitation rights in the musical works which were the subject of the allegedcopyright infringement. At its instigation, a service provider ascertained that in 2006, a total of 253 audio files were made available on the Internet under a particular IP address using file-sharing software. At the request of the claimant, the public prosecutor's office finally ascertained that during the period in question the identified IP address was assigned to the defendants. During police investigations, it was established that in the apartment there was only one computer, which was examined with the consent of the defendants, with the result that file-sharing software was not installed on it. The music titles in dispute were also not found at the defendants' premises. It could not be ascertained who made the audio files available for download.

Following the conclusion of the police investigations, the claimant called upon the defendants to issue a ceasefire declaration subject to penalties and to pay a settlement amount of €3,500. The defendants then issued a ceasefire declaration as a mere precaution, but refused to pay the settlement sum, whereupon the claimant finally asserted claims for damages and compensation through legal action. In support of their claim, the claimant argued that the defendants were liable as perpetrators or as wrongdoers for the copyright infringements. The amount claimed by the claimant consisted of damages calculated according to the principles of licence analogy (€300 per title) plus pre-litigation legal costs on the basis of a subject matter value of €200,000 (= €2,380.80).

The court's decision

The Regional Court (LG) dismissed the action on the grounds that it was not satisfied that the defendants had committed the copyright infringement. Neither liability as a perpetrator nor as a wrongdoer came into question. Although the fact that the IP address was assigned to the defendants during the period in question constituted a factual presumption that they were responsible for the infringement, the defendants had discharged their secondary burden of disclosure by asserting that they had nothing to do with the infringements, in particular that file-sharing software was not installed on their computer and that the disputed audio files were not on their computer. Moreover, the WiFi router was also adequately secured. All of the defendants' assertions were furthermore confirmed by the results of the police investigation.

With regard to potential evidentiary difficulties, the court stated as follows:

"In general, a party faces considerable difficulty of proof when it must prove circumstances which fall within the sphere of the opposing party which is hidden from its view. Nevertheless, a procedural obligation to clarify matters on the part of the party not bearing the burden of proof is prohibited, since in general no party is obliged to provide the opposing party with the information required for success in the proceedings. Nothing more than a modification of the burden of disclosure—as provided by the Federal Court of Justice (BGH) for the connection subscriber—is permissible, as otherwise the fundamental rights protection of the opposing party would be unduly impaired."

The court further noted that the presumption inferred from the assignment of the IP address in support of the correctness of the claimant's assertions had been refuted by the results of the police investigation. Moreover, proof of the commission of the infringement by the defendants could be provided neither by examining the witnesses at the time entrusted with the investigation nor by obtaining an expert opinion regarding the correctness of the investigation result of the IP address.

Conclusion

Ultimately, the defendants benefited in this case from the results of the police investigation. However, this decision is also to be welcomed from another perspective. It makes clear that in comparable cases, it should not be assumed that the burden of proof is reversed, but rather only that the burden of disclosure of theconnection subscriber is modified.