An interesting, but in this respect, based on the case law of the Federal Court of Justice (BGH), consistent ruling was made by the Regional Court of Frankfurt am Main in the problem area of file sharing.
According to this provision, the question of whether the secondary burden of proof has been fulfilled is no longer relevant if, after the taking of evidence, the owner of the connection has not only shown, but also proven, that his family members could be considered the perpetrators of the infringement.
In addition to other civil procedural comments, however, it is particularly interesting that the Frankfurt am Main Regional Court is of the opinion that the reasoning of the BGH in the “Tauschbörse II” case (judgment of June 11, 2015 – I ZR 7/14) indicates that the duty of supervision can also be satisfied by instruction if the users are clearly and unambiguously informed that use, which also includes file sharing, may not take place. An instruction is therefore sufficient if the owner of the connection has expressly instructed his children not to download or install anything illegal and has specified this in such a way that any activity on a file-sharing platform is also covered by the instruction.
The issue of file-sharing cease-and-desist letters is therefore not over in 2019 and will continue to occupy lawyers and courts.
