Mother liable for file sharing due to lack of supervision!

The Local Court (AG) Stuttgart-Bad Cannstatt has, in a recently issued decision, set aside the current case law of the Federal Court of Justice (BGH) and convicted a mother under the liability of disturbers for offering a computer game on the Internet, since the judge was of the opinion that the line holder must have supervised her son's Internet usage.

The AG Stuttgart-Bad Cannstatt had to decide a file-sharing case in which the law firm Nimrod Rechtsanwälte Bockslaff und Scheffen GbR from Berlin, on behalf of its client Astragon Software GmbH, applied for the payment of out-of-court legal fees in the amount of EUR 1,157.00 for a file-sharing warning notice from May 2013 and licence damages compensation for the repeated illegal provision of the computer game "Landwirtschaftsimulator 2013" in the amount of at least EUR 510.00.

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According to the court's assessment, the line holder had credibly stated that she had not been at home at the times of the infringements, for the most part, and had had her computer switched off. The single mother of a 16-year-old son was even on holiday at the time of one of the infringements in question.

The son, who had authorised access, was mostly at home at the times of the established infringements. The line holder, however, did not believe in her son's guilt and communicated this to the court. In particular, she had expressly instructed her son not to carry out any illegal downloads via her connection, which remained undisputed.

During the hearing, the judge expressed the view that, given the fact that the file-sharing offer concerned a computer game, he did not consider the mother to be the perpetrator. However, he stated that the mother was naive if she believed that her son had not committed the infringement. His own son had also engaged in file-sharing without his knowledge, and he had then had to pay for it. He then indicated that he would grant the application by Astragon Software, but granted our client a deadline for written submissions.

Even the presentation and detailed discussion of the current case law of the Federal Court of Justice (BGH) –Az. I ZR 169/12 (we have reported) – could not convince the court.

Court's decision

The Local Court (AG) Stuttgart-Bad Cannstatt convicted the line holder withJudgment of 28.08.2014 – Az. 2 C 512/14 – as a disturber due to the provision of copyright-protected software on the Internet by her son to the payment of warning notice fees in the amount of EUR 155.29. Furthermore, the court ordered the line holder to pay a share of 7% of the costs incurred in the court proceedings.

In the court's view, the mother was responsible for the infringement of her son – whose perpetration was in no way proven or plausibly demonstrated in the proceedings – because she had enabled him to access the Internet without supervision!

The Local Court (AG) Stuttgart-Bad Cannstatt justified the massive reduction in the requested legal fees with a legal norm of German copyright law (§ 97a Absatz 3 UrhG) that was not yet valid at the time of the warning notice, which limits the out-of-court value in dispute to EUR 1,000.00 and thus resulted in a – legally incorrect – reduction in the fees owed.

Conclusion

With the present judgment, the court disregards the judgment of the Federal Court of Justice (BGH) issued earlier this year (I ZR 169/12), in which the Federal Court of Justice (BGH) decided that the holder of an Internet connection is, in principle, not obliged to instruct family members about the unlawfulness of participation in Internet file-sharing networks or other legal violations on the Internet and to prohibit them from using the Internet connection for unlawful participation in Internet file-sharing networks
or for other legal violations on the Internet. If no duty of supervision existed for the mother, then she could not have been convicted as a disturber, particularly not with the reasoning chosen by the Local Court (AG).

By the erroneous application of a legal norm that did not yet exist at the time of the warning notice, the Local Court (AG) Stuttgart-Bad Cannstatt has massively reduced the costs for the mother, but at the same time has deprived her of the opportunity to appeal against the incorrect decision, since the value of the subject-matter of the appeal does not reach the statutorily stipulated EUR 600.00. For Astragon, however, the filing of an appeal is possible, since the computer game manufacturer has lost 93% of its claim in terms of amount.