Who’s using your internet?

03-06-2017

Jens Künzel

Uploading films and music to file-sharing networks is an infringement of copyright pertaining to those films and music, and rights owners still vigorously pursue claims against people who they believe have committed infringement.

Uploading films and music to file-sharing networks is an infringement of copyright pertaining to those films and music, and rights owners still vigorously pursue claims against people who they believe have committed infringement.

In many lawsuits, the only proof against the defendants which the copyright owner is able to obtain is the IP address. It is established case law in Germany that the courts may presume that the owner of the IP address was the person who committed the infringing acts if they were the sole user of the IP address in question. If the defendant does not present any facts that would contradict this presumption, the court can presume that the defendant committed the infringing act.

However, if the defendant substantiates that other users had access to the internet from their IP address, the plaintiff has the burden of proof that the defendant committed the infringing acts. For instance, the defendant may contend that a family member such as a spouse or child living at home, or third parties such as friends or wider family, had access to the internet.

In a case that was decided by Germany’s Federal Court of Justice in October 2016, the defendant was the sole owner of an IP address through which the film “Resident Evil: Afterlife” had undisputedly been uploaded to a file-sharing network 14 times.

The defendant disclosed in the litigation that his wife had access to the internet via his IP address and usually used it without his supervision. The Court of Appeal had dismissed the action on the grounds that the defendant had met his procedural duty to disclose whether third parties had access to his internet address by naming his wife.

Defendant’s duty

The plaintiff filed a request for further legal review with the Federal Court of Justice, arguing that the defendant’s duty had to go further than that.

According to the plaintiff, the defendant must provide further facts in connection with his spouse’s internet use, such as whether file-sharing software was on the computer, and the nature of his spouse’s internet use in the time period the infringements had been committed.

The Federal Court of Justice ruled that the defendant had met his procedural duty simply by disclosing his spouse as a third person who actually had access to the internet via his IP address. The defendant was not under a procedural duty to research and disclose the actual infringer, but he must disclose any third person who may have had access to the internet through his IP address if he wants to avoid the court’s presumption that he is the infringer.

That duty does not include presenting facts about his spouse that would have been possible to obtain only by keeping books and regularly preparing a kind of documentation about his spouse’s behaviour on the internet. Article 6 of the German Constitution, which protects the institutions of marriage and family, demands in situations like this that a spouse is not under such a far-reaching duty to disclose private facts about their partner in order to defend against the assertion of claims for infringements the spouse may not have committed.

"The Court of Appeal was right when it held that the defendant was not under a duty to disclose further facts about his spouse’s behaviour."

In this case, the court recognised that the basic rights following from article 6 were in conflict with the plaintiff’s constitutional rights regarding his copyright (which is protected in Germany by article 14 of the Constitution as part of the guaranteed right of property).

But the Federal Court of Justice ruled that as a result of balancing these constitutional rights, article 6 should prevail. This was because imposing a duty to disclose private facts about one’s spouse in the context of a civil lawsuit would be an unjustified interference with the right to have marriage and family protected.

However, the court recognised that the defendant regularly must disclose whether there was file-sharing software on the computer over which access to his internet address was regularly established. On this point of law, the Court of Appeal had not made a mistake when it dismissed the action because the defendant had in fact said that there was not file-sharing software on his computer.

So the Federal Court of Justice said the Court of Appeal was right when it held that the defendant was not under a duty to disclose further facts about his spouse’s behaviour and the nature of his spouse’s internet activities.

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

Krieger Mes & Graf v. der Groeben, Jens Künzel, Federal Court of Justice, internet, court, defendant, infringement

WIPR