Summary: File sharing and the year 2016

The year 2016 saw numerous BGH cases on file sharing. Here is a brief summary of the decisions. If there are any decisions missing here that have been forgotten, please feel free to provide feedback:

Judgment of 11.06.2015 – I ZR 19/14 – Tauschbörse I

In the Tauschbörse I ruling, the BGH clearly stated that individual file fragments (so-called “chunks”) would constitute an object of protection just like complete music files. It is irrelevant whether complete pieces of music or only fragments are exchanged on file-sharing platforms.

In this case, it is not the copyright work under Section 2 UrhG that is relevant, but rather the ancillary copyright of the producer of the sound recording medium within the meaning of Section 85 UrhG. The object of protection is thus the technical achievement of the phonogram producer, the definition of the sound sequence on the phonogram. Therefore, even the removal of the smallest sound particle is an infringement of the sound carrier producer’s property right.

Judgment of 11.06.2015 – I ZR 7/14 – Tauschbörse II

Here, the BGH held that parents are generally obligated to supervise their child’s Internet use in order to prevent damage to third parties. This duty of supervision would, however, be satisfied if the parents were to instruct their normally developed child that participation in file-sharing networks is illegal and to issue a ban in this regard.

It should be noted that parents are not obliged to monitor the use of the Internet, to check the child’s computer or to block access to the Internet even partially. These measures are only necessary if the parents have concrete evidence that the child is violating the prohibition.

Judgment of 11.06.2015 – I ZR 75/14 – Tauschbörse III

The owner of an Internet connection via which an infringement of rights is committed does not satisfy his secondary burden of proof with regard to whether other persons had independent access to his Internet connection by merely asserting in general terms the theoretical possibility of access to his Internet connection by third parties living in his household.

In this case, the defendant himself had stated that no other person had had access to his Internet connection at the time of the crime because of the local absence of all of them. Thus, he had not submitted that a third person could be considered as the perpetrator. In order to invalidate the presumption of perpetration, it would depend specifically on the time of the injury.

Judgment of 12.05.2016 – I ZR 1/15 – Tannöd

In this context, the guiding principle was established that, when determining the value of the subject matter of a claim for injunctive relief under copyright law, the relevant interest of the rights holder in the cessation of further copyright infringements is to be determined on a lump-sum basis. The type of infringement, in particular the economic value of the infringed right, as well as the intensity and scope of the infringement are decisive.

This also includes the topicality and popularity of the work concerned as well as the exploitation already carried out by the rights holder. Thus, if a current feature film is unlawfully made public shortly after its release, the exact determination of the object value of the injunctive relief also depends on whether the rights holder has already exploited the work by releasing it on DVD as well.

Judgment of 12.05.2016 – I ZR 48/15 – Everytime we touch

A claim for damages in respect of file sharing is subject to § 102 p.2. UrhG in conjunction with § 852 BGB applies. The Federal Court of Justice thus ruled that even in the case of file sharing, damages are not subject to a statute of limitations until 30 years have elapsed. The BGH thus clearly states and clarifies that by making a work available on a file-sharing platform, the perpetrator would at the same time give a large number of users access to the work, would certainly obtain something, and would thus fulfill the elements of the offense.

Judgment of 12.05.2016 – I ZR 86/15 – Silver Linings Playbook

In this case, the Federal Court of Justice ruled that the owner of an Internet connection is generally not obligated to inform adult members of his shared apartment or his adult visitors and guests, to whom he provides the password for his Internet connection, about the illegality of participation in file-sharing networks. The illegal use of file-sharing networks and corresponding programs does not have to be separately prohibited by the owner of the connection.

Judgment dated 12.05.2016 – I ZR 43/15

Here, it was held that a simple factual situation cannot be inferred if the rights holder routinely pursues frequent copyright infringement. Furthermore, the unlawful provision of a recently published computer game on an Internet file-sharing platform does not constitute a merely insignificant infringement. The value of a claim for injunctive relief in this respect is not less than €15,000.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.