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Federal Constitutional Court, File Sharing and Children

This post is also available in: Deutsch

The Federal Constitutional Court has accepted a constitutional appeal to the decision “Loud” of the Federal Court of Justice and ruled that in the case of adult children, the secondary burden of proof of the follow-up owner would require that the name of the child be mentioned. , which has committed the potential copyright infringement through file-sharing programs. It thus did not see any violation of fundamental rights in the decision of the BGH.

The fundamental right to respect for family life under Article 6(1) of the Basic Law does not preclude a civil procedural obituenal ity of the holders of an Internet connection to disclose which family member used the connection. On that ground, the 2nd Chamber of the First Senate did not accept a constitutional complaint by a couple against a conviction for damages and reimbursement of warning costs, which did indeed know which of their children’s music content had made it publicly available to the public in breach of copyright law, but had not disclosed this in the civil proceedings. Article 6(1) of the Basic Law gives rise to a right not to incriminate family members, but not to protect them from the negative procedural consequences of that silence.
By their decisions, the previous courts of appeal thus had the fundamental right to respect for family life under Article 6(6) of the Court of First Instance. 1 GG not injured. It is true that there is an interference with its scope of protection, which places the family under the special protection of the State and also includes the relationship between parents and their adult children. Family members are then entitled to freely shape their community in family responsibility and consideration. However, that impairment is justified. The interpretation of the relevant standards – Section 97 para. 2 Sentence 1, Section 85 para. 1 UrhG in conjunction with Section 138 of the ZPO was therefore carried out correctly.

The Federal Court of Justice took into account that right holders in order to enforce their rights in file-sharing proceedings regularly do not have the opportunity to access circumstances arising from the area of internet use completely removed from their access by the or to provide evidence. In favour of the applicant, as the proprietor of the right to protection of services, which are subject to Article 14 OF the Basic Law, it thus takes into account its interest in effectively enforcing its copyright position in relation to unauthorised exploitation acts. He limits the impairment of the complainants’ family relationships. Family members do not have to burden each other if the actual person acting cannot be asautible. On the contrary, they only bear the risk of an assessment of the facts which is unfavourable to them if they do not meet the requirements for presentation and evidence. Conversely, the possibility of preventing internal family tensions and relationships through silence in the process or, in any case, not having to carry them to the outside world does not mean that this silence should exclude liability in general – i.e. without procedural consequences. The factual “choice” granted in civil proceedings to disclose or remain silent in the civil proceedings in order to safeguard Article 6 of the Basic Law cannot take precedence over the enforcement of the right to protection of performance Claim. The protection of the family does not serve to evade, for tactical reasons, one’s own liability for the infringement of intellectual property rights. The mere fact of living with other family members does not automatically lead to the exclusion of liability for the connection owner. In so far as the complainants claim that there are better and more consistent solutions in similar cases to the legal positions of intellectual property rights holders and their users, this applies to the constitutionally not. In addition, it was not necessary to decide whether it would be justified to impose research or demand obligations on the connection holder.

Whether this decision also applies to minor children is, meanwhile, a matter of dispute among lawyers. However, there is a strong case for this and my advice to touch file-sharing programmes only with the pins, as well as to teach children clearly and clearly about a ban on file sharing.

Marian Härtel

Marian Härtel

Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.


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