Filesharing from a judge‘s point of view
The entertainment industry have already been dealing with illegal filesharing for a long time. The same applies to the courts. Through the years a certain line of jurisprudence has been developed by the courts to get such cases under control. Nevertheless, there is still a wide range of difficult matters and unanswered questions in this field. Dr Olaf Weber LL.M., Judge at the Local Court of Saarbrücken, presented in his lecture on our conference “More Than Just a Game” “Filesharing - insides and anecdotes from a judge” some of the particularly difficult and complex cases from a judge‘s point of view.
This included cases where right holders have identified the internet access through which the illegal filesharing was committed, yet the access owner denied having committed the filesharing actions himself. Apart from the burden of presentation and proof the balancing between the protection of the family and the rights of right holders is often difficult in this context, especially the question, whether and to what extent the access owner can be required to provide further details on the acts of violation, committed by the family member responsible for the filesharing. This issue has now been decided by the ECJ in favour of the right holders (ECJ ruling of 18 October 2018 – C-149/17 and we are now waiting for the application of this decision by national courts.).
Other problematic issues are the scope of liability in cases of filesharing when committed by multiple persons and the liability of operators of open Wifi hotspots.
Please fell free to contact Timo Conraths if you have any questions.