▷ BGH on file sharing: no discharge of the courts

17.12.2020 – 09:33

.rka lawyers

Hamburg / KarlsruheHamburg / Karlsruhe (ots)

The owner of an Internet connection through which a copyright infringement has been committed can withhold his knowledge of the real perpetrator until he is sued without incurring any cost disadvantages. This is what the Federal Court of Justice (BGH) said, according to the law firm RKA lawyers (www.rka.legal) decided today (BGH judgment of December 17, 2020, I ZR 228/19).

It is well known that owners of an Internet connection are being sued by rightholders for injunctive relief and compensation for copyright infringements by means of a swap exchange. In fact, according to the case law of the BGH, in so-called file sharing cases against the subscriber, the presumption applies that he is also the perpetrator. He can refute this presumption by fulfilling so-called secondary burdens of proof and presenting in a legal dispute who else, if not himself, could seriously be considered as the perpetrator of the infringing act. If he knows the perpetrator, he must name him to avoid his own liability.

In the case now decided by the Federal Court of Justice, the subscriber had communicated in advance of the warning issued by RKA Rechtsanwälte that he himself had not committed the violation of the law. The defendant initially refused to provide further information. Only in the legal proceedings did he name the perpetrator known to him at the time of the warning. The presumption of culprit was thus refuted and the original lawsuit could not be successful. The legal dispute was by no means over.

“Anyone who only fulfills their secondary burden of proof in the process and only then provides information is forcing the plaintiff into an unnecessary and cost-intensive process,” explains the Hamburg lawyer and partner at the RKA law firm Nikolai Klute. The law firm had therefore changed the lawsuit and demanded compensation from the defendant for the useless litigation. The BGH, however, considered the defendant’s behavior to be highly problematic, but in the end saw no basis in these proceedings to convict the defendant of the costs of the legal dispute. “We would of course have wished for a different decision, also because this would have spared the courts in Germany a large number of lawsuits. In practice, however, the judgment does not change anything. The case law of the BGH continues to force actions to be brought and enforced Claims initially against the subscriber. If the subscriber then provides the information required to discharge him, this will, in the most favorable case for him, lead to the dismissal of the action. Because this is exactly what the BGH wants to make possible with its case law on the secondary burden of proof “, so lawyer Nikolai Klute,” and this real perpetrator of the infringing act then not only bears his own costs of the process against him, but also the costs of the proceedings against the subscriber litigation. ” Because he has to completely reimburse the claimant for these costs as damage.

The office RKA lawyers is a law firm with offices in Hamburg and Berlin, which has been active for many years mainly in the areas of competition, trademark, copyright and media law. One focus of the law firm is litigation.

Press contact:

RKA Rechtsanwälte Reichelt Klute GbR, Johannes-Brahms-Platz 1, 20355 HAMBURG, www.rka.legal, mailto: [email protected], Tel .: (0 40) 5 50 06 05 0

Original content from: .rka Rechtsanwälte, transmitted by news aktuell



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