The most important decisions of the BGH on the subject of file sharing

Filesharing case law in the course of time

File sharing refers to the exchange of digital files over the Internet. Numerous programs such as BitTorrent, Gnutella, eDonkey and PopcornTime are used to offer films, music and computer games for exchange on the Internet. The case law on these illegal file-sharing offers is complex. We would like to provide you with an overview.

Starting in 2012, the Federal Court of Justice (BGH) has changed its case law for exchange offers almost every year. copyrighted works on the Internet.

In recent years, the Federal Court of Justice has issued numerous rulings on the liability of connection owners for illegal file sharing. These rulings have a significant impact on jurisdiction and the responsibility of internet users in Germany. Above all, these rulings clarify the extent to which the connection owner is liable if third parties, such as children, spouses or roommates, use their Internet connection for illegal downloads.

In this article, we take a look at some of the most important judgments of the Federal Court of Justice on the subject of file sharing. The cases discussed here show that the BGH differentiates between the responsibility for underage and adult users, as well as between different forms of neglect of the connection owner's security obligations. These judgments provide important information for lawyers and affected Internet users alike.

An overview of important findings from the case law of the Federal Court of Justice on file-sharing networks

• Secondary burden of proof:The owner of the connection must prove that the infringement was not committed by him, but by a third party.
• Parental liability: Parents are not automatically liable for their children's file sharing if they have instructed them sufficiently.
• Liability for adult family members: Connection owners are not liable for adult roommates without concrete evidence.
• Duty of proof: The entry in databases and the documentation by screenshots can serve as evidence.
• Damages: Rights holders are entitled to compensation for every file made available for download.

These are the most important rulings:

BGH, judgment of May 12, 2010 - I ZR 121/08 - Summer of our lives

In the "Summer of Our Lives" ruling, the Federal Court of Justice laid the foundations for the liability of connection owners for inadequately secured WiFi connections. The owner of a WiFi connection is liable as a disruptive party if third parties misuse their connection to upload copyrighted works to internet file-sharing networks. It is important to note that the owner of the connection has a secondary burden of proof if they claim that they did not commit the infringement themselves.

BGH, judgment of November 15, 2012 - I ZR 74/12 - Morpheus

The "Morpheus" ruling deals with the liability of parents for illegal file sharing by their underage children. The BGH ruled that parents are already fulfilling their duty of supervision if they instruct their children about the illegality of Internet file-sharing networks and prohibit them from participating in them. A more extensive duty of supervision only exists if there are concrete indications of an infringement.

BGH, judgment of January 8, 2014 - I ZR 169/12 - BearShare

In the "BearShare" ruling, the Federal Court of Justice clarified that connection owners are not liable for illegal file sharing by adult family members unless they have concrete evidence of misuse of the connection. The connection owner must explain whether and which other persons had access to their connection in order to meet their secondary burden of proof.

BGH, judgment of June 11, 2015 - I ZR 19/14 - Tauschbörse I

In this ruling, the BGH dealt with the assessment of evidence in the case of investigation results relating to IP addresses. Evidence that music files were made publicly accessible under an IP address can be provided by documented investigation processes and assignments by the internet provider. The BGH also confirmed claims for damages of € 200 per file made available for download.

BGH, judgment of June 11, 2015 - I ZR 7/14 - Tauschbörse II

The Federal Court of Justice specified the supervisory duty of parents with regard to the file sharing of their underage children. Parents already fulfill their duty by providing instructions and prohibitions as long as there are no concrete indications of violations. This ruling continued the principles of the "Morpheus" ruling.

BGH, judgment of June 11, 2015 - I ZR 75/14 - Tauschbörse III

The "Tauschbörse III" ruling confirmed the connection owner's secondary burden of proof. General assertions about third party access to the Internet connection are not sufficient. The owner of the connection must specifically state who had access and who could be considered the perpetrator.

BGH, judgment of May 12, 2016 - I ZR 272/14 - The Popess

This ruling concerned the effectiveness of warning letters and the reimbursement of warning costs. The BGH ruled that offering a copyrighted work for download via a file-sharing platform does not constitute an insignificant infringement of rights and therefore the € 100 rule of Section 97a (2) UrhG aF is not applicable.

BGH, judgment of May 12, 2016 - I ZR 1/15 - Tannöd

The BGH determined that the object value for injunctive relief for a feature film is at least € 10,000. Higher amounts may also be appropriate in the case of particularly successful films or infringements immediately after the theatrical release. This depends on the economic value of the infringed copyright.

BGH, judgment of May 12, 2016 - I ZR 43/15 - Alan Wake

This ruling concerns the assessment of the value in dispute for the infringement of copyrights to computer games. The BGH ruled that an object value of at least € 15,000 is appropriate if an averagely successful computer game is offered illegally shortly after publication.

BGH, judgment of May 12, 2016 - I ZR 44/15 - Scream 4

The BGH clarified that the illegal offering of a feature film via a file-sharing platform justifies a claim for injunctive relief with an object value of at least € 10,000. This applies regardless of the duration of the infringement or the popularity of the film.

BGH, judgment of May 12, 2016 - I ZR 48/15 - Everytime we touch

In this ruling, the BGH specified the scope of the connection owner's secondary burden of proof. He must explain which persons had access to his internet connection and are possible perpetrators, and which investigations he has carried out in this regard.

BGH, judgment of October 6, 2016 - I ZR 154/15 - Afterlife

The BGH ruled that a connection owner is not obliged to document their spouse's internet use or to check their spouse's computer for file-sharing software. This would be unreasonable in order to avert criminal liability.

BGH, judgment of March 30, 2017 - I ZR 19/16 - Loud

In the "Loud" decision, the Federal Court of Justice confirmed the secondary burden of proof of the connection owner. Parents must state the name of their child if they know that the child has committed the infringement, otherwise they themselves are liable as the perpetrator.

BGH, judgment of July 27, 2017 - I ZR 68/16 - Ego shooter computer game

In this ruling, the secondary burden of proof for spouses was once again addressed. The BGH ruled that the owner of the connection satisfies his burden of proof if he presents circumstances that suggest the possibility of a different course of events.

BGH, judgment of December 6, 2017 - I ZR 186/16 - Conference of the Animals

The BGH ruled that users of file-sharing platforms are liable as accomplices to copyright infringement if they offer file fragments of a copyrighted work for download. Even if these fragments cannot be consumed on their own, this is sufficient for an infringement.

BGH, judgment of March 22, 2018 - I ZR 265/16 - Riptide

The "Riptide" decision concerned the reimbursement of warning costs by the perpetrator. The BGH ruled that the perpetrator must bear the warning costs if he committed the infringement and the rights holder first had to warn the connection owner.

BGH, judgment of December 17, 2020 - I ZR 228/19 - Saints Row

The BGH ruled that the person being warned is not obliged to name the perpetrator of a copyright infringement out of court. As a result, the person being warned does not incur any cost disadvantages if he does not name the perpetrator before court.

BGH, decision of December 17, 2020 - I ZB 38/20

The BGH clarified that a "cause of action" only exists if the action was admissible and well-founded or could have been at an earlier point in time. This provision is not applicable to hopeless lawsuits.

Conclusion

• What does "secondary burden of proof" mean? In deviation from the general rule of burden of proof that everyone must prove what is favorable to them, the owner of the connection must demonstrate that it was not them but third parties who committed the infringement. He must provide concrete information about the access and use of his connection by other persons.
• Are parents always liable for their children's illegal file sharing? No, parents are not automatically liable. They must inform their children about the illegality of file sharing and prohibit them from participating in file-sharing networks. Further monitoring is only necessary if there is concrete evidence.
• Do connection owners have to monitor adult roommates? No, without concrete evidence of copyright infringement, there is no obligation to monitor or instruct adult roommates or guests.
• What evidence is admissible for the perpetration of a connection owner? Documented investigation processes, screenshots and assignments by the internet provider are admissible as evidence. These must prove the use of the IP address at the time of the infringement.