Legal Questions on Music Downloads – ECJ Judgment of 18.10.2018
ECJ has ruled in case C 149/17 (Bastei Lübbe): The account holder must attempt to determine who could have committed a copyright infringement using their connection. Otherwise, they are liable. Invoking privilege for family members is not permissible.
On 18 Oct. 2018, the European Court of Justice (ECJ) addressed questions surrounding file sharing, downloads, and liability for family members.
Similar to the Advocate General Szpunar’s opinion, the ECJ affirms a duty to investigate. The protection of the family must not override the rights of copyright holders of protected works.
It has become apparent that law firms issuing warnings or rights holders are increasingly claiming that the ECJ has generally affirmed the liability of the account holder for family members. However, this is not the case in such a comprehensive manner.
Background:
1. BGH on Music Downloads by Underage Children
In three judgments from June 11, 2015 – I ZR 19/14, I ZR 21/14, and I ZR 75/14, the BGH confirms and specifies its jurisdiction on the so-called indirect liability of parents for copyright infringements committed by their underage children. The parents were ordered to pay substantial damages.
What was it about?
a) In one of the proceedings (Case No. I ZR 75/14), the account holder defended himself by stating that he had been on vacation with his family and had switched off all devices, especially the computers and the router. Therefore, the IP address determination must have been faulty.
The BGH considered the determination by investigative services as sufficiently reliable. Due to the lack of alternative perpetration options, the account holder was considered responsible. The claim that the family had been on vacation was not believed after the taking of evidence.
Consequences for practice:
- The defense that the investigations could be faulty is hardly accepted anymore.
- A defense claiming one was on vacation without presenting concrete bookings, etc., is not promising.
- Claiming that all devices necessary for internet access were switched off is no longer promising, as it leaves open which alternative method could have led to a violation by third parties.
- One must provide qualified evidence of who could have had access and that these persons have each confirmed not being the perpetrator.
b) In the case I ZR 7/14, it was determined – among other things through the evaluation of a statement to the police – that the underage daughter of the account holder committed the infringing act. In principle, the account holder can then claim that they were not responsible. However, for underage children, they must prove that they fulfilled their supervisory duty. In this case, the account holder could not prove that they had sufficiently instructed their 14-year-old daughter or carried out other controls. In particular, sufficiently clear instruction is required. If there are indications of possible violations, more intensive controls must be carried out.
Consequences for practice:
- Minors should be demonstrably instructed (we have drafted a sample instruction on copyright on the internet). How and why instruction was given should be verifiably documented.
- If possible, administrator rights for installing relevant software should not be granted to children.
c) In the third case (I ZR 19/14), the account holder also could not identify alternative perpetrators. Neither his wife nor the 17-year-old son had administrator rights. Alternative perpetrators were not considered based on the presentation. Thus, the account holder was ordered to pay damages as the perpetrator.
Consequences for practice:
- It must be demonstrated that and how other persons can gain access either illegally or legitimately.
- It is helpful if all authorized users have been demonstrably instructed. A possible sample instruction on copyright on the internet is available for download.
In summary, the new jurisdiction is consistently based on previous decisions, especially the so-called Morpheus decision (BGH, Judgment of November 15, 2012 – I ZR 74/12) and specifies the requirements for the burden of presentation and proof of the claimant.
It seems important to be able to present an instruction, preferably in written form.
2. Music Downloads by Adult Family Members or Third Parties
According to the German Federal Court of Justice, no explicit instruction is necessary for adult family members.
However, according to recent case law, the account holder must attempt to determine who actually carried out the illegal download. This person must be disclosed.
If such a person cannot be identified because all possible users have assured that they did not commit the violation, at least this result must be communicated.
The same principles now also apply to third parties who have been granted access.
So if you have adult visitors and grant them access to your Wi-Fi as a friendly gesture, and the visitor then uses this access for an illegal download, the account holder is not liable for any violations. This applies even if no explicit instruction about the prohibition of illegal downloads has been given.
Practical implications:
- It must be disclosed which other adult and minor persons were granted access to the affected internet connection. There is no longer any family protection in this regard.
- It must also be reported that an attempt has been made to find the responsible person. If found, they must be named.
3. The ECJ Decision
The ECJ now takes the view that the owner of an internet connection through which copyright infringements were committed via file sharing can be held liable for this violation if they refuse to name a family member who had access to this connection. According to the ECJ, merely invoking family protection without providing details about the time and nature of the connection’s use by this family member is not sufficient. In such a case, the account holder must be held responsible for the copyright infringement.
In principle, this decision is in line with recent case law in Germany, which requires at least investigations to be conducted to determine who could be responsible for the copyright infringement.
What’s new, if anything, is that depending on the case, details about the use by family members must now also be disclosed.
Essentially, the ECJ’s latest ruling only confirms the recent jurisprudence of the leading German courts. However, in the future, one will probably have to investigate and present more extensively on questions of internet use by other family members in order to successfully defend against indirect liability.