At the same time, the German Federal Government announces to release professional Wi-Fi network operators from liability
On 12 May 2016, the German Federal Supreme Court ("FSC"; Bundesgerichtshof – BGH) made several judgments, confirming and developing its settled case law on the liability of a subscriber of an internet connection ("Subscriber") for copyright infringements made by third persons (see the FSC's press release of 12 May 2016). The full judgments are not yet available.
In case 1 (Case No. I ZR 48/15), the FSC found that the Subscriber's allegations, i.e., that his children (15 and 17 years) had shared the litigious 809 audio files, were irrelevant. In particular, the FSC confirmed its earlier position (as in judgment of 11 June 2015, Case No. I ZR 75/14) that there shall be a presumption that the Subscriber has committed the infringements and that this presumption can only be rebutted if the Subscriber achieves to specify in sufficient detail that specific third persons might be the real infringers (so-called sekundäre Darlegungslast). According to the FSC's view, the mere reference to third persons living in the same household as the Subscriber cannot eliminate the Subscriber's liability for damages and reimbursement of legal expenses for warning costs.
In case 2 (Court No. I ZR 86/15), the Subscriber had provided her WI-FI router passwords to her niece and her niece's partner from abroad who were visiting the Subscriber. The FSC held that the Subscriber cannot be held liable for forbearance, based on copyright infringements committed by its guests. In particular, the FSC emphasized that, without a concrete reason, the Subscriber shall not be obliged to instruct his / her visitors not to commit copyright infringements. This shall apply not only to full of-age visitors and guests, but also to full of-age members of the Subscriber's household.
The FSC Judgments are accompanied by the announcements from the German Federal Government of 11 May 2016 to release professional operators of Wi-Fi networks with Internet access accessible to the public from liability for copyright infringements committed by the Wi-Fi network's users. To this aim, the Federal Telemedia Act (Telemediengesetz – TMG) shall be amended accordingly (see the Federal Government's Press Conference of 11 May 2016). With this approach, the German Federal Government appears to follow the Opinion of Advocate General Szpunar in the proceedings before the Court of Justice of the European Union, Case C-484/14, of 16 March 2016. The Opinion suggests that the current legal framework in Germany, which imposes liability upon operators of Wi-Fi networks publicly available free of charge, is not in-line with EU legislation.
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