No tortfeasor liability for use of RetroShare

To date, the offering of protected works through the use of file-sharing software, in the form of a centralized P2P system, has been the subject of numerous copyright cease-and-desist letters. The Regional Court (LG) Hamburg has now decided in a case involving the use of RetroShare.
The recipient of the cease-and-desist letter, being the connection holder, used the programme RetroShare, which enables file-sharing between friends, whereby the exchange of files with friends not directly connected on further levels is also possible. In response to the cease-and-desist letter, he stated that he himself had never owned the disputed musical recording and accordingly had not offered it for download. It was also not possible for him to see what content his friends or other users were exchanging over the network. Since the connection holder did not issue a cease-and-desist declaration in response to the cease-and-desist letter, the rights holder applied for the issuance of a preliminary injunction.

Court's Decision

By order of 24.09.2012 – Az. 308 O 319/12, the Regional Court (LG) Hamburg did oblige the connection holder as a tortfeasor to cease the infringing activity. However, the court rejected tortfeasor liability. The connection holder had rebutted the factual presumption of his tortfeasor status triggered by the identification of his connection by stating that he had not offered the disputed sound recording for download and that it had never been on his computer. In doing so, the connection holder satisfied his secondary burden of proof. Since the rights holder could not prove his tortfeasor status, no corresponding liability was in question. In the absence of intent, liability as a participant was also rejected.

The connection holder's liability as a tortfeasor in this case resulted from a breach of inspection duties as operator of a WLAN network. The connection holder had deliberately used software that enabled other network participants to unlawfully make files publicly accessible via his connection without him being able to control this.

Conclusion

The unauthorized offering of copyright protected works in the context of the use of a decentralized network, such as RetroShare, constitutes a copyright infringement. If this is not carried out by the connection holder, he is liable at most as a tortfeasor.

It is also interesting to note that in assessing the value in dispute in the context of mere tortfeasor liability, the court proceeded on the basis of 3/5 of the value for corresponding tortfeasor liability. In this case, the value in dispute was set at EUR 6,000 for an offered music title.