Waldorf-Frommer withdraws file-sharing lawsuit

In Munich, the approach to liability of connection owners is gradually being reconsidered, as we have been able to observe in several proceedings. In the current case, the Local Court (AG) Munich has confirmed that the sued connection owner has satisfied his secondary burden of pleading sufficiently, and has left it to Tele München GmbH + Co Produktionsgesellschaft to withdraw the claim.

The underlying facts are quickly recounted: The connection owner shared her internet connection with her partner, who has since passed away. On the day of the alleged copyright infringement, she was at home occupied with her godchildren, the computer (laptop) was switched off at that time and in her bag. What her partner was doing at the relevant time could no longer be clarified. In any event, he was present and had the opportunity to use his computer and connect to the internet.

These – correct – submissions by the defendant prompted the court at the hearing to conclude that the secondary burden of pleading had thereby been satisfied. It was now up to the rights holder to prove the perpetration. Since this was obviously not possible, the court saw withdrawal of the claim as the only option. This is indeed what happened. Tele München thus bears all the court costs.

The court also pointed out that for a secondary burden of pleading it would be sufficient if, according to the submissions, there was a "serious possibility" of the offence being committed by another person. It is not necessary to exclude the possibility that the connection owner committed the offence (which, if possible, is nonetheless recommended).

The withdrawal of the claim was only possible because we agreed to it at the client's request. Otherwise there would have been a dismissal judgment.

Conclusion

For a connection owner wrongfully accused of copyright infringement, it is in any case worthwhile to defend himself against a claim, especially since the law firm Waldorf Frommer in particular is currently bringing a large number of claims. Consent to withdrawal of the claim should only be considered in such cases if the claims have certainly become time-barred. Due to the risks involved, therefore, a judgment is to be preferred where possible.