File sharing: Will 70-year-old fall victim to case law?

[Captain Marvel]

Google Translation:

In a judgment dated June 8, 2020, file number 148 C 400/19, the Cologne District Court ruled that an almost 70-year-old subscriber was sentenced to damages for illegal file sharing. By not naming a third party who could have been responsible for the copyright infringement besides her, the secondary burden of explanation remained unfulfilled here. However, the law to abolish interference liability for providers of public WLAN networks, which came into force in 2017, is often interpreted "against the express will of the legislator" . In this case too, Beata Hubrig, a lawyer and radio operator from Berlin, reports on the blog Freifunk instead of fear.

Warner Bros. sued 70-year-old for damages for copyright infringement

The proceedings concerned the illegal provision of copyrighted film recordings via an exchange. The defendant was proven by a company commissioned with the help of a forensic system that film material was available for download from an internet exchange via their internet connection, although the defendant was not authorized to do so. The applicant alone, Warner Bros., had unlimited rights to the film. As a result, Warner Bros. sent a warning and also claims compensation in the amount of € 2,000.

Court demands a secondary reporting burden in file sharing cases

First of all, the applicant bears the burden of proof and proof for the requirements of the claim. Therefore, she must also prove that the defendant is responsible for the alleged copyright infringement. However, an actual presumption speaks for the claimant's perpetration if no other person was able to use this Internet connection. This assumption is refuted if the internet connection could also be used by other people at the time of the injury. In these cases, the subscriber has a secondary burden of proof .

Defendant has no computer or file sharing Software

For questioning, the old woman stated that she neither had her own computer nor had any idea of how file sharing via the exchange market worked at all. However, her son set up a radio link in his house. She is identified as the connection owner and thus the contractual partner of the provider. It is therefore a service provider by granting third parties access to the Internet. The judge at the Cologne District Court, Köster-Eiserfunke, "however, does not apply the legally determined liability privilege in her favor" . He insists on fulfilling the secondary burden of proof, which the 70-year-old naturally cannot fulfill. As a result, the court fully sentenced the defendant to the required damages.

Judgment does not do justice to situation

Beata Hubrig comments the case law with some concern, since the judgment clearly undermines "the will of the legislature" :

"The reasons for the decision are extremely interesting and summarize, as an example, a dangerous development that has become clear in many cases of tendentious jurisprudence in recent times. In such copyright proceedings, connection holders must now demonstrate that they are not considered as perpetrators, and in some cases they should even prove this. In this way, judges give rights holders like Warner Bros. a procedural advantage. They no longer have to present facts themselves which they use to substantiate their claims - on the contrary, the defendant is now exposed to a diffuse so-called "burden of proof" to present his non-offense. This takes place against the express will of the legislator, who, with the amendment to the TMG (3rd TMGÄndG of 2017) expressly wanted to exclude a liability risk for subscribers, among other things, in order not to endanger the digital location Germany by a wave of unfair warnings. In recent years, however, well over 100,000 people in Germany have faced such a legal dispute quite helplessly. "

In conclusion, Hubrig summarizes:

"If it is impossible in a case as obvious as the old lady without her own computer to convince the judge that she cannot be considered as a perpetrator - how are the millions of people supposed to escape the fact that she was a perpetrator? "

Attorney Beata Hubrig also considers it critical to appeal in this case. On the one hand, the "mental burden that such a procedure entails would be problematic" . Secondly, the old lady would have to “expose her family to charges of copyright infringement. The LG Cologne also expects this from her. The legal dispute will also include, in the second instance, the search for the perpetrator. "