The responsible among other things for copyright I. Civil Division of the Federal Court decided today, that parents are not liable for the illegal file sharing of a 13-year-old child, if they had instructed the child on the prohibition of unlawful participation in Internet exchanges and had no evidence, that their child violates this prohibition.
The applicants record producers. They are holders of exclusive copyright rights in numerous musical recordings.
At the 28. January 2007 were after the investigation of a designated enterprise by the applicants in an Internet swap meet under a specific IP address 1147 Audio files available for free download. The applicants presented a complaint against unknown and informed the prosecutor with the IP address. After the information gathered in the investigation of the Internet provider was the IP address at the relevant time the defendant assigned to the Internet.
When the defendant is a married couple. They had the Internet and their time 13 put year old son available, they his 12. Birthday hand PC the defendant to 1 had left.
Bei einer vom zuständigen Amtsgericht angeordneten Durchsuchung der Wohnung der Beklagten wurde am 22. August 2007 the PC of the son of the defendant seized. The computer programs were the swap meet “Morpheus” and “Bearshare” installed; the program's icon “Bearshare” could be seen on the desktop of the PC.
Having inspected the investigation file of the prosecution, the applicants did admonish the defendant by counsel and to submit punitive cease and desist request. The defendant handed over the declaration of. They refused, however,, To pay damages and to reimburse any warning.
The applicants consider, the defendants were committed because of an injury to their parents' supervision requirement to pay compensation, which was caused by the unauthorized public access to the music. Sie nehmen die Beklagten wegen des öffentlichen Zugänglichmachens von 15 Musikaufnahmen auf Zahlung von Schadensersatz in Höhe von 200 € je Titel, insgesamt also 3.000 € nebst Zinsen sowie auf Erstattung von Abmahnkosten in Höhe von 2.380,80 € in Anspruch.
The district court granted the claim. The defendants' appeal has been unsuccessful. This Court has adopted, die Beklagten hafteten nach § 832 Abs. 1 BGB für den durch das illegale Filesharing ihres minderjährigen Sohnes entstandenen Schaden, because they failed to fulfill their parental supervision. They would not respect the rules of conduct established by them for Internet use – as claimed by them – controlled. Had the defendant on her son's computer actually installed a firewall and security program, the respect to install any programs “no admission” would have been made, her son would not be able to install the file sharing software. Hätte der Beklagte zu 1 den PC seines Sohnes monatlich überprüft, he would have to discover the programs installed by his son with a look at the list or software on the computer's desktop.
The Federal Court overturned the decision of the Appeal Court and the case dismissed. According to the Supreme Court meet their parental obligation to supervise a normally developed 13-year-old child, that followed their basic do's and don'ts, regularly been characterized, to teach the child about the prohibition of unlawful participation in Internet file sharing. A commitment from the parents, the use of the Internet to be monitored by the child, To check the computer the child or the child to access the Internet (partially) to block, There is no fundamental. Such measures are parents – according to the BGH – only obliged, if they have reasonable grounds for an infringing use of the Internet access by the child.
Judgment of 15. November 2012 – I ZR 74/12 – Morpheus
LG Cologne – Judgment of 30. March 2011 – 28 The 716/10
CR 2011, 687
OLG Cologne – Judgment of 23. March 2012 – 6 You 67/11
WRP 2012, 1007