Liability for unlawful filesharing: the BearShare case

In modern times, it has become increasingly common for young adults to be still living at home with their parents. It is also quite common that there is an internet connection in such homes, whose owner is the parent rather than the adult child, although the child regularly uses it.

The BearShare case addressed the legal question of how far the responsibility of the owner of the internet connection reaches; in other words, under what circumstances it includes liability for illegal filesharing by the adult children using their parents’ internet connection.

In the case at hand, the plaintiffs were record producers who claimed that several thousand files of their recordings had been made available for illegal download on a filesharing platform over the defendant’s internet connection. They sued the defendant for reimbursement of legal costs incurred through a warning letter sent by their attorneys.

The defendant had argued that he was not responsible for the copyright infringement as his 20-year-old stepson, who lived with him and his wife, had access to his internet connection and had offered the files on the filesharing platform using the defendant’s internet connection without his knowledge and permission.

The first instance court (Cologne) had sentenced the defendant to pay the requested legal costs. In its view, the defendant was liable for the costs, not because he was regarded as the wrongdoer himself, but because he had a responsibility to instruct his stepson and others living in his flat and using his internet connection that filesharing was illegal and not to be performed over this internet connection. The defendant had not fulfilled that legal responsibility.

The court applied the German concept of liability of the ‘interferer’ [Störer]—someone who is liable on account of a legal obligation to act but fails to do so in spite of his ability and the opportunity to prevent the infringement. The Cologne Court of Appeal upheld the plaintiffs’ claim, albeit in a reduced amount, and affirmed the first instance court’s reasoning.

However, the Federal Court of Justice reversed the appeal court’s judgment. It held that it was not reasonable, in default of any indication or suspicion that there was any illegal activity going on, to demand that the defendant instruct adults living in his household that filesharing may be illegal and was not to be performed over his internet connection.

"The court says that the Morpheus decision could also not be applied here as the defendant had no statutory or legal duty to survey a young adult."

The court had previously held (in Sommer des Lebens [Summer of Life]) that owners of internet connections were liable for illegal downloads or offers on filesharing platforms by third persons using the connection (eg, a wireless local-area nework) if the connection was not secured with common security programs (see my report on this decision in WIPR August 2010 http://www.worldipreview.com/article/third-party-pirates-the-need-for-protection).

The Federal Court of Justice now said that the previous decision could not be applied in the BearShare case as here the defendant had let a family member use his internet connection. In another previous case, Morpheus, the Federal Court of Justice ruled that parents of underage children fulfilled their parental surveillance responsibility if they advised their underage child that participating in filesharing platforms is illegal and instructed them not to participate.

There is no general duty to survey a child and inhibit his or her use of the internet; that duty may exist only if the parents have reason to assume that the child is acting against their prohibition. The court says that the Morpheus decision could also not be applied here as the defendant had no statutory or legal duty to survey a young adult.

As a general rule, the court held, on the question of whether the owner of an internet connection has a duty to avoid copyright infringements performed over his internet connection, the facts of each particular case have to be considered. If he grants a family member access to the internet, the special family relationship based on trust and the self-responsibility of young adults rules out such a duty in this case.

Only if the owner of the connection has sufficient reason to assume that a family member is using the connection to perform illegal acts must he or she take measures to avoid the illegal acts continuing. This general rule did not apply to spouses, but only in relation to adult children or step children.

Jens Künzel, LLM, is a partner at Krieger Mes & Graf v. der Groeben. He can be contacted at: jens.kuenzel@krieger-mes.de