Connection holder must prove access by third parties!

What are the requirements for evidence production with regard to investigations into illegal file-sharing? Is it decisive for the liability of the connection holder whether he has an interest in the work? What is an appropriate level of damages? The reasoning for the Federal Court of Justice (BGH) judgments "File-sharing Exchange I, II and III" dealing with these issues was published this week. We briefly summarise the most important aspects of the judgment "File-sharing Exchange I" below.

The three judgments of the Federal Court of Justice (BGH), which were delivered in June of this year, follow on from the Federal Court of Justice (BGH) judgments from 2010 (we reported), 2012 (we reported), and 2014 (we reported). As in previous years, the Karlsruhe judges addressed the issue of the liability of the connection holder for copyright infringements via a file-sharing platform – so-called illegal file-sharing.

In the first case – "File-sharing Exchange I" – ("we reported") the defendant connection holder contested that his IP address had been correctly determined. The internet connection was used jointly with his wife. However, his wife did not have administration rights to install programmes. His 17-year-old son had no access to the password-protected computer.

Court decision on damages in file-sharing cases

By judgment of 11.06.2015 – Az. I ZR 19/14 – "File-sharing Exchange I" the Federal Court of Justice (BGH) ruled against the connection holder and in favour of the claimant sound recording manufacturers.

The Federal Court of Justice (BGH) permitted simplified requirements for proof of ownership of sound recording rights and the investigation process. According to the court's view, a theoretical possibility that errors could occur in the investigation does not speak against the evidential value of the investigation results. This would require, in individual cases, a presentation of specific circumstances speaking against the correctness of the investigation result. A single incorrect letter in the name given in an information table – as in the present case – was not sufficient in this respect.

According to the Federal Court of Justice (BGH), it is irrelevant whether the computer contained files with complete musical pieces or merely file fragments. Even the extraction of the smallest sound particles constitutes, according to the court, an infringement of the protected performance of the sound recording manufacturer.

The Federal Court of Justice (BGH) confirmed the appellate court's view that the defendant was the perpetrator of the infringement. Other persons were excluded as being responsible for the infringing act.

The Federal Court of Justice (BGH)'s view was not changed by the fact that the defendant was not at home at the time of the infringement and had no interest in such musical pieces. A personal interest in the music files is not required, since the connection holder could have installed the files on his computer, for example, for social occasions, for transfer to third parties, or out of technical interest in the functioning of an internet file-sharing platform. The previously downloaded files would have been available for download via the activated and internet-connected computer even in his absence.

The level of damages claims was confirmed. The Federal Court of Justice (BGH) had no objection to damages for file-sharing in the amount of EUR 200.00 for each of the music recording files made available for download.

Conclusion

In our view, the Federal Court of Justice (BGH) has clarified two things with the judgment "File-sharing Exchange I". On the one hand, the connection holder must demonstrate and, in the event of a dispute, also prove that persons other than himself had access to the internet connection through which the infringement was committed at the time of the infringement. If this cannot be achieved, the connection holder is liable as the perpetrator.

On the other hand, it does not matter whether the connection holder or other authorised users were physically present at the time of the infringement. It is only necessary to demonstrate that they had access and thus the possibility of committing the infringement even in their absence.