[x-pubpol] Germany: Parents are not responsible for children (in case of filesharing)

[Joly MacFie]

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 Interesting new common sense high court decision on filesharing:

The Federal Court (of Germany): Parents are not responsible for children
(in case of filesharing)

by Markus Beckedahl - 15 November 2012

The Federal Court today ruled that, in certain cases, parents cannot be
held liable for their children if they are caught illegally copying and
sharing files.

The case related to a 13-year-old child. The First Civil Senate of the
Federal Court, responsible for copyright affairs, today ruled that the
parents cannot be held liable, because they "had instructed their child
that it is prohibited to participation in Internet filesharing" and they
had "no evidence that the child was violating this prohibition."

This regulation about liability makes sense, since the instruction of a
child should normally be sufficient. It is also good that there is, in
principle, no obligation for the parents to supervis their child, unless
there exists a reasonable suspicion against the child. Scandalous at the
decision is, however, that a district court - because of a suspected
file-sharing - searched the apartment of the family.

The history:

- The applicants submits that the defendants were in violation of their
parental duty to supervise, and are therefore required to pay compensation,
based on the fact that the songs had been made publicly accessable without
authorization. They required the defendant - because of making the files of
15 music recordings publicly accessible, to recover damages to the amount
of €200 per title, i.e. a total of €3,000 [approx. US$3,800], plus
interest, and in addition claiming also the costs for legal warnings
totaling €2,380.80 [approx. US$3,000].

- The district court had granted the claims. The defendants' appeal was
unsuccessful. The appellate court considered the defendants to be liable
under § 832 section 1 of the Civil Code for the damages caused by the
illegal filesharing of their underage son, because they failed to fulfill
their parental supervision. They did not supervise the rules of conduct
established by them for Internet use - as they had claimed previously. Had
the defendant installed a firewall on their son's computer and security
software to check the admissability for downloading specific files, their
son would not have been able to install filesharing software. Had the
defendant checked the PC of their son once a month, they would have
discovered the programs installed by their son with one glance at the
software list or at the computer's desktop.

- The Federal Court overturned the decision of the Appeal Court and
dismissed the case.

=
The original report in German is here
https://netzpolitik.org/2012/bgh-eltern-haften-nicht-fur-kinder-bei-filesharing/<http://www.linkedin.com/e/-9xy8n2-h9m91afb-r/plh/https%3A%2F%2Fnetzpolitik%2Eorg%2F2012%2Fbgh-eltern-haften-nicht-fur-kinder-bei-filesharing%2F/W3hx/?hs=false&tok=1bwjJyb9EV7Bw1>
-
the present English text is my quick translation.
 Posted by Norbert Klein


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