The Higher District Court in Munich (the “OLG”, 29 U 2593/15) revisited the evergreen topic “filesharing”. It ruled that, in case of an alleged copyright infringement, the owner of an internet connection has to present all known facts with regard to the infringer, even if such infringer is a family member. If the owner of the internet connection does not do so, he will be liable himself.
It has become common sense that in case of an alleged copyright infringement via an internet connection, the owner of such internet connection is subject to a secondary burden of proof (“sekundäre Beweislast”, cp. German Federal Court, I ZR 74/12). That means that he has to present facts that are able to rebut the presumption that the owner of an internet connection is the delinquent, when it comes to copyright infringements via the respective internet connection. According to the Federal Court, this includes the use of any reasonable means to find out who is the real perpetrator. However, according to the Federal Court, this has to be done after the plaintiff has presented facts that underline the presumption, that the infringement was done through the respective internet connection and therefore its owner is the delinquent.
The OLG had to deal with a situation, where the infringement was done by one of the children of the couple who owned the respective internet connection. The couple refused to disclose which of the (grown up) children was the delinquent. The core question the OLG had to answer was therefore, if and when parents are obligated to sell out their children in order to win a filesharing-case.
The ruling of the OLG
The OLG now did two things. First, it clarified that the presumption described above also applies, when there are two owners of the internet connection, e.g. a couple, and explained that, from a procedural point of view, the presumption has to be treated as a prima facie evidence. This does not make a difference compared to the legislation of the Federal Court so far (as described above).
However, as a second step, the OLG stated that the obligation of the owner of the internet connection to research and disclose all facts that substantiate the fact that the violation was committed by someone else comes into action even before the plaintiff has presented facts that underline the presumption as described above. This includes the names of family members, if known. To underline its argumentation, the OLG refers incorrectly to the jurisdiction of the Federal Court. The Federal Court never stated such obligation, but just wanted to make clear, that if the owner of the internet connection is able to present facts that rebut the presumption, he must present all facts he knows about the infringement in order to make it possible for the plaintiff to enforce his rights against the right person.
Without any force to do so, the OLG expanded the obligations of the owner of an internet connection in case of a copyright infringement through his internet connection, not only, because such owner now has to present the facts he knows even before the plaintiff has proven that the violation has been committed through the respective internet connection, but also with regard to the disclosure of the names of family members. Such disclosure stands in opposite to the fact that the family as such is protected under the constitution. The district court in Berlin had ruled before, that parents are not obligated to send their children to their doom (15 S 12/14).