A father and internet connection owner has been held liable by a court in Germany of committing copyright infringements through the use of file sharing software. He and his family denied sharing copyright-protected files over the internet. Nevertheless, the district court of Cologne ordered the father to pay compensation and to reimburse all pre-litigation legal fees (05.06.2013 Az.: 28 O 346/12).

File sharing and family internet connections

Breaching copyright through file sharing is rigorously pursued in Germany. Warning letters demanding compensation and the reimbursement of legal fees are regularly sent to the owners of private internet connections. Often, the internet connections concerned are used by numerous people in a household, for example family members.

As a result, German courts take the position that once the claimant in a file sharing case has shown that a copyright infringement has occurred, there is a presumption that the internet connection owner was the perpetrator and the burden of proof switches to the defendant to demonstrate that there is some other explanation.

Any case law concerning the rebuttal of this presumption is therefore extremely important and is currently hotly disputed.

In the current case, the father, his sons (one of them a minor child) and his wife had independent access to the internet. The family members had all assured the defendant that they did not possess or use any file sharing software.

Inability to rule out file sharing

In analysing the case law, the court acknowledged that where several family members use an internet connection, it is possible to rebut the presumption of guilt against a connection owner. The connection owner simply needs to assert that the copyright infringements have been committed in some other way.

In the current case the claimant accepted that the other family members had not infringed copyright. The court found that the fact that the father could not entirely rule out that one of the family members may have secretly used file sharing software to be contradictory and therefore irrelevant. As a result, the father was unable to sufficiently demonstrate that the presumption of guilt should be rebutted.

Burden of proof in file sharing cases

It is entirely conceivable that a third party committed the copyright infringement, even when all members of a family household deny possessing or using file sharing software. The conclusions reached by the court on when the presumption of guilt is rebutted and where the burden is placed to do so, does not conform to Cologne’s regional appeal court case law.

This is despite the fact that the judges citied the regional appeal court’s judgment (16.05.2012 Az.: 6 U 239/11) directly, stating: “the burden on the defendant does not extend to him having to shed light on who the perpetrator of the copyright infringement actually is…the internet connection owner is not under an obligation to prove, for each and every infringement committed via his internet connection, that he was not the perpetrator and to absolve himself of liability.”

In light of this clear appreciation of the current case law, the judges appear to have erred in practically requiring the defendant to prove who committed the copyright infringement, even though it was not possible.

To take advantage of such a position, copyright holders would simply refrain from disputing that any family members committed the copyright infringements, leaving the connection owner with an unrebuttable presumption of guilt. This would see German file sharing law returning to now long obsolete case law principles (as seen in this case: 11.05.2011, Az.: 28 O 763/10).

It should not be forgotten that the burden of proof in file sharing cases is on the copyright holder to show who committed a copyright infringement. Copyright holders benefiting from the privileged position of an unrebuttable presumption of guilt to the detriment of internet connection owners cannot be reconciled with ordinary principles of civil law.