Third party pirates: The need for protection

Germany’s Federal Supreme Court handed down a decision in May 2010 in the Sommer unseres Lebens (summer of our life) case, concerning the conditions under which owners of wireless LAN routers may be responsible, under German law, for third parties downloading pirated, copyright-infringing material, using their routers.

The facts of this case were simple: the defendant, a private person, was the owner of a wireless LAN router providing access to the Internet. An unknown third party had used this wireless LAN router while the defendant was on holiday and had offered, inter alia, an illegally copied music file called Sommer unseres Lebens for download on the eMule file exchange platform.

The plaintiff owned the copyright to the recording. It was discovered that the defendant’s wireless LAN had been used in order to offer the music for download. The plaintiff asserted claims for a cease and desist order and for damages.

The defendant denied wrongdoing and claimed he was away while the infringement had purportedly been committed. The first instance court sentenced the defendant nonetheless. The Court of Appeal reversed that judgment and dismissed the action. The Federal Supreme Court now faced the task to decide, for the first time, under what conditions owners of wireless LAN routers could be held responsible for infringements committed using their wireless LAN access.

“In German intellectual property law, as in the German law of tort in general, infringing acts may be committed by the offenders themselves, who actively commit the infringing acts, or by participants, who help to commit the acts in full knowledge that they are being committed.”

In German intellectual property law, as in the German law of tort in general, infringing acts may be committed by the offenders themselves, who actively commit the infringing acts, or by participants, who help to commit the acts in full knowledge that they are being committed. Under both of these categories, the defendant could not be responsible for the copyright infringement, the Federal Supreme Court held. First, the defendant himself was not the offender. He had not offered the files. That could be established because the defendant was on holiday at the time of the offence. Furthermore, the defendant was not a participant in that there was no intent. So the Federal Supreme Court decided that at least the damages claim failed.

However, there is a third category of responsibility that is increasingly used to ‘catch’ people who have the power to influence a certain activity, but who do not qualify as either offender or participant under the conditions described above. This third category is called Störer (interferer). The interferer is responsible for certain acts to which he contributes, whether willingly or not. This person must also be in a position to reasonably be expected to consider whether an illegal act may be committed.

In this case, the Supreme Court held that owners of wireless LAN routers can reasonably be expected to provide security measures that are state-of-the-art at the time when the wireless LAN is acquired. A private person cannot be expected to update the security measures at concurrent pace with advances on the Internet, but he is expected to have the security available when he acquires the Internet access.

In the Sommer unseres Lebens case, an authentification code under the WPA2 standard was the security measure commonly used when the defendant acquired the Internet access and wireless LAN router. The court established that the defendant had not used an authentification code under that standard. He therefore had breached his duty to secure the wireless LAN sufficiently so that no third parties could use it for illegal activities.

The Supreme Court therefore reversed the Court of Appeal judgment, which had dismissed the cease and desist claim, but remitted the case to the Court of Appeal since the plaintiff had not formulated a claim to accommodate the concrete infringement for which the defendant was responsible.

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