Old lady's conviction upheld by Cologne Regional Court October 25, 2021 by Beata Hubrig
In a remarkable judgement of 23.9.21, the Regional Court of Cologne confirmed the conviction of an almost eighty-year-old lady as a file sharer to 2000 € compensation by means of a daring judicial addition of facts to the Telemedia Act. Thus, the liability privilege in the Telemedia Act, which was specifically affirmed as a protection for honorary freifunkers, is invalid; the legislator has obviously overestimated the ailing saved functionality of its courts.
In the meantime, the defense of connection owners against the accusation of having committed a copyright infringement by means of file sharing is hopeless in German courts until the connection owner identifies the perpetrator and informs the rights exploiters of his or her name and address.
In place of the "Stoererhaftung" (Breach of Duty of Care), the owner of the connection is obliged to provide information about user behavior that is relevant to the threat. Judges draw this cumbersome construction from Section 138 (2) of the German Code of Civil Procedure (ZPO), the secondary burden of disclosure. A secondary burden of proof is imposed on those who wish to defend themselves against unjustified claims for damages. The prerequisite for this, however, is not only that the rights exploiters have no closer knowledge of the perpetrator, nor can they obtain this knowledge, and are therefore allowed to name anyone as the perpetrator.
The prerequisites of the secondary burden of proof normally also include that the owner of the connection has knowledge of the perpetrator and that he or she can reasonably be expected to provide more detailed information. However, this part is not examined by the judges. Judges are silent about the important question of whether knowledge of the perpetrator is available at all and whether it is reasonable to expect the data to be handed over.
This raises a fundamentally relevant question: How does the owner of the connection obtain knowledge of the perpetrator of the copyright infringement? Does she really have more knowledge about the copyright infringement?
Translated with www.DeepL.com/Translator (free version)
Translated with www.DeepL.com/Translator (free version)
