No obligation for subscribers after a warning due to To name file sharing "disruptors" of the copyright infringement

[Chewy_fox]

A man and his family used a WiFi connection in his duplex that was registered on him. A work colleague of his partner and her two sons were temporarily guests. During this period, a computer game was downloaded illegally - in other words, in violation of copyrights - by means of file sharing via the man's internet connection or offered publicly for download on an internet exchange. The peculiarity here was that the man lived with his daughter in one half of the duplex and his partner with their son in the other half.

After the provider had given information about the connection owner, the man received a warning from the rights holder with a pre-formulated declaration of discontinuance and was asked to pay damages. He then signed a so-called modified cease and desist declaration and made it clear that he himself had not made the computer game publicly available on the Internet in the exchange. He did not give the name of the real perpetrator (so-called troublemaker), although he had meanwhile found out that one of the sons of the work colleague of his partner had committed the copyright infringement.

Only when he was sued by the rights holder before the Landshut district court for copyright infringement for damages and reimbursement of warning costs did he name the real perpetrator. Thereupon the rights holder demanded the reimbursement of the costs of the legal proceedings (legal fees and court costs) in the appeal court. She justified this by stating that these costs only arose because the subscriber did not name the real perpetrator before filing the lawsuit.

Judgment of the BGH v. December 17, 2020, Az .: I ZR 228/19 (dismissal of the right holder against the subscriber ) :

Both the Regional Court of Munich I, as the appellate instance, and the Federal Court of Justice as the revision instance, dismissed the rights holder's action against the subscriber.

The subscriber is not obliged to provide information out of court about interferers:

In the opinion of the court, a right to information does not arise from the cease and desist contract (declaration of cease and desist signed by the subscriber) or for other reasons.

In the opinion of the BGH, the cease and desist contract did not result in any secondary obligation to name the perpetrator. When the contract was concluded, the subscriber had expressly pointed out that he was not the perpetrator. An interpretation of the contract would therefore show that the subscriber did not want to disclose the identity of the so-called interferer.

The fact that the man was the owner of the connection through which the copyright infringement was committed, and the submission of the cease and desist declaration subject to penalties, does not lead to a pre-contractual obligation, as can be the case during contractual negotiations, which already have certain secondary obligations such as duties of consideration and notification duties or be able to establish disclosure obligations. With the request to submit a declaration of cease and desist with a criminal offense, and with the submission of a pre-formulated cease and desist declaration, the rights holder did not begin any contractual negotiations, but only gave the affiliate the opportunity to accept or reject the offer to conclude an injunction contract to avoid an injunction before the court. Thus, no pre-contractual "relationship of trust" was created that could trigger secondary obligations and lead to a claim based on "fault in the conclusion of the contract". Even the conclusion of the contract for the WLAN connection between the connection owner and the provider does not constitute a legal special connection with the rights holder.

The same applied to claims from "management without a mandate" (such claims can exist if someone takes on duties to avoid damage that someone else should have fulfilled) or from deliberate damage (the man did not, however, deliberately provide false information about the perpetrator made).

In this case, no claim arose from the copyright infringement itself, since the subscriber was not responsible for the copyright infringement in the specific case.

Obligation to provide information to the subscriber in court proceedings due to secondary burden of proof:

There was therefore no pre-judicial obligation (i.e. no obligation before the start of the trial in court) to name the perpetrator. In the legal proceedings itself, however, the subscriber is obliged, according to the principles of the secondary burden of proof, to name the perpetrator if he does not want to be liable as the perpetrator himself. This is because the rights holder satisfies his primary burden of presentation if he demonstrates that the copyright infringement occurred from the connection of the connection owner. It is then suspected that the subscriber was the perpetrator. The subscriber must then demonstrate, as part of his secondary burden of proof, that another person who had access to the WLAN connection may have committed the file sharing, i.e. could have been the perpetrator. In this context he must explain who had access to the internet connection and who could be the perpetrator. This means that he is satisfied with his duty of investigation and burden of proof. The rights holder must then demonstrate that the connection owner is to blame for the copyright infringement, for example because he has not properly informed his underage child about the dangers of the Internet and the prohibition of file sharing.

Procedure after receipt of warning due to File sharing - short deadlines:

If you have received a warning about file sharing (e.g. via BitTorrent), it is best to call us as soon as possible or write an e-mail and make an appointment for an individual consultation - whether in our office in Stuttgart, by phone, by zoom or MS Teams or by email. Do not call the warning office yourself and do not sign the pre-formulated cease and desist declaration, because you do not know what to look out for. Since the deadlines set by the warning offices (e.g. Waldorf Frommer, Sasse, Fareds, Daniel Sebastian, Kornmeier, Nimrod, Rasch, etc.) are often quite short - usually 10 to 14 days - you should not wait too long. We will then discuss the chances of success and how to proceed with you. If we come to the conclusion

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