Correct determination of the IP address – proving it with an expert opinion?

A file-sharing cease-and-desist letter is typically preceded by a court order which enables the copyright holder to assign an IP address identified during a copyright infringement to a specific connection. In the present case, the Higher Regional Court (OLG) Cologne had to decide to what extent an expert opinion concerning the reliability of IP address determination must demonstrate that at the time of the infringement, errors in the determination are ruled out.

A cease-and-desist law firm used its own software to identify copyright infringements on the Internet, with which corresponding IP addresses could be determined in file-sharing cases. After determining the IP addresses, the firm submits a request for disclosure to the competent court of the internet service provider in order to find out which subscriber the IP address identified was assigned to by the provider at the time of the infringement.

The Regional Court (LG) Cologne rejected such a request on the grounds that it was of the opinion that the reliability of the developed software and an exclusion of errors in the determination had not been proved despite an expert opinion being submitted. The cease-and-desist law firm challenged this decision by appeal before the Higher Regional Court (OLG) Cologne.

Court decision

By means ofBeschluss vom 07.09.2011 – Az. 6 W 82/11 – the Higher Regional Court (OLG) Cologne upheld the decision of the court of first instance.

An expert opinion intended to prove the reliability of software for determining IP addresses must, in addition to the correct assignment, demonstrate that errors in the determination of the IP address are ruled out. If no such expert opinion is available, there is no claim for disclosure against the provider.

An order for disclosure required that there be an obvious infringement of rights. Therefore, a claim for disclosure could only be granted if an unjustified burden on the person obliged to provide disclosure could be ruled out. This would only be the case if an expert opinion proved at the time of the copyright infringement that the software used to determine the IP addresses in question had functioned without error.

Conclusion

The OLG Cologne once again attracts attention with a decision in the file-sharing field. In future, investigation firms will presumably have to prove that the software they developed functioned without error at the time of the alleged infringement. A retrospective expert assessment would not satisfy the requirements set by the court.