Under German civil law copyright infringements through filesharing can basically be pursued in two ways. On the one hand, it is obviously possible to pursue claims against the person who actually makes the copyrighted material accessible via internet. This person may be the actual perpetrator of the copyright infringement or someone who deliberately aids and abets the perpetrator committing the copyright infringement. On the other hand, right holders can also try to catch any person who – without being the actual infringer/ abettor –contributed to someone else’s copyright infringement in any way. The courts have repeatedly found such third parties responsible for copyright infringements (see, for example, Federal Supreme Court aka Bundesgerichtshof aka BGH, decision of 11/03/2004 – 1 ZR 304/01 and decision of 04/19/2007 – I ZR 35/04).
The legal theory behind this is called “Störerhaftung” a term that can be translated as “principle of liability for disturbance/interference” or “breach of duty of care”. This principle stems from the general civil law, where it is – for example – explicitly laid down in the German Civil Code (sec. 1004 German Civil Code). This section provides for a property owner’s claims for abatement or removal in the event that someone interferes with her property. However, over the last few of years the principle has been brought into effect in many cases of copyright infringements. Especially persons providing the connection to the Internet – i.e. letting someone else using his/her internet connection – have been held responsible for copyright infringements under the principle of liability for disturbance, when their internet connection was used to infringe someone else’s copyright: If they did not provide the internet connection, the reasoning goes, the copyright infringement could for lack of the necessary technical equipment not occur.. Thus, the person (deliberately) providing the connection to the internet contributes to the third person’s copyright infringement and can therefore be held responsible. Does this mean parents can be liable for what their children do online? What about spouses?
Well, in theory, there are limits to the disturbance liability, as it requires that the disturber has failed to meet certain obligations. For people allowing others to use their internet connection such obligations can include a duty to advice the users about the boundaries of legal internet use and to control their surfing behavior. The extent of these obligations is, however, subject to great discussion.
Recently, two court decisions were added to this discussion. Both concerned the duty to control other family members.
First, the Local Court of Frankfurt (Amtsgericht, AG Frankfurt, decision of 05/25/2012 – 32 C 157/12) held that spouses are not required to control each other, not even if there are signs for copyright infringements via the internet connection. According to the court, one has to bear in mind that households usually have one telephone or internet connection. Without regard to who signed the contract for the connection, spouses generally consider it to be “theirs”. Therefore, according to sec. 1357 German Civil Code, they are both and equally bound by the contract. Considering their equal obligations and rights under the contract, neither of them could be held responsible for infringements the other one committed.
On 06/04/2012 the Higher Regional Court of Cologne (Oberlandesgericht, OLG Köln, decision of 06/04/2012 – 6 W 81/12.) held that parents are to control their children. Even if their children are of age, parents have to apply measures to make sure their children are not infringing copyrights. The measures to be taken by the parents are – however – not further described by the court.