titled “Use of barter exchange and would”, the Bundesgerichtshof has made another eagerly-awaited judgment this week. According to the Basic Federal Supreme Court judgment on the subject in January 2014 ( case No. I ZR 169/12 ) another open question in relation to that of families will be answered with him shared Internet connection.
the Supreme Court had noted at that time , that does not reasonably can be that the connection owner for the offender and thus also liable, if at the time of the infringement, other adult family members were able to use the connection suppose. If he has received a cease and desist letter, he must inform but within the framework of the so-called “secondary statement burden”, whether third party had access to who they are and whether they come as the culprits into consideration.
according to BGH are to investigate only “reasonable”, to obtain this information. What under reasonable understanding is, the Supreme Court said then in a proceeding in October 2016. Opinion of the 1st civil Senate of the Federal Court of Justice the have off must find not the perpetrators and also not name these.
the Court noted rather clearly in its decision, that the investigation only on the possible access and name of the potential offender involved. Further investigation are unreasonable to the connection owner. The case concerned a married couple. The man had informed that the woman had access to her computer. The information required by the rights-holders, whether that file-sharing software has been, is it according to the BGH but not reasonable.
in the current BHG judgment, it revolves around a port that was shared by a family with three adult children. The rights holder had taken the connector holder (parents) for copyright infringement damages in the amount of at least 2500 euro, as well as reimbursement of incurred costs amounting to 1379,80 euros in claims, because an album of the artist Rihanna was made publicly available in January 2011 over the Internet via file-sharing. The parents had denied committing the infringement. They defended, that the three with them inherent, adult three children owned their own computer and access to the Internet via a Wi-Fi router that is marked with an individual password. You knew but what child for copyright infringement is responsible, did not call its name.
in proceedings before the Federal Court of Justice was now so that’s why, whether the property rights of the music industry or article 6 of the basic law , which guarantees the protection of marriage and the family, are valued higher. As so often in court judgments, is but here on the details: “ Bundesgerichtshof acknowledge today again that the fundamental protection of marriage and family is to evaluate higher as the property rights of the music and film industries. The connection owner is obliged not to specific investigations within the family. “He determined however itself the culprit, so he must name this also, even if it comes from his family environment”, explains the Cologne Prosecutor Christian Solmecke .
the Federal Court reiterated has according to also, that first of all the music and movie industry must prove that the connection owner as perpetrators liable. If no other people make use of the Internet at the time of the infringement, however speak a guess for the criminals of the holder. To this question connection owner would have to speak also within the framework of its so-called “secondary statement load”, because the exact circumstances may be not known to the rights holders admonition from.
in the current case, the parents of this “secondary burden of discourse” have not enough because they have concealed the child’s name, that the infringement had given to them in the context of whether underlying investigations across. The indication of the name is reasonable and consistent with article 6 of the basic law according to the BGH.
“the decision leads to the conclusion that parents now better be if they though theoretically the possibility in the space, make that their children have committed the crime, but at the same time declare that they do not know the real culprit”, so the lawyer. “The parents know the perpetrators, they must betray him or they are responsible themselves. You do not know the offender parents from liability be exempt.”
[withmaterialfromPeterMarwan silicon.de ]