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P2P lawsuit: District Court Munich makes unreal claims

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Although the warned one did everything possible to find the culprit, the judges are not satisfied. The court requires that he specify for the day who was present and used his WLAN. Until the investigation of the perpetrator, the Internet should be rigorously torn for all other users. The lawyer of the warned called the demands of the court as a veritable " psycho terror " and " blackmail ".

Waldorf Frommer has been sued for Warner Bros.

The District Court of Munich is currently negotiating a P2P lawsuit with the file number 132 C 9709/19. The subject of the discussion is the use of an illegal file exchange offer of copyright protected film recordings. There was no final verdict in the case. However, the court has already positioned itself by appropriate evidence and indicates an unusually severe gait. The parties are based on a submission to the European Court of Justice.

The plaintiff, Warner Bros. Entertainment GmbH, is represented by the law firm Waldorf Frommer. It claims the defendants to pay damages and reimbursement of expenses for infringement of their copyrights. The initiated investigations into the provision of the controversial film in an exchange led to his IP address. Thus, the plaintiff reminded the defendant.

The defendant assures his innocence: Neither had said film on his own computer, nor a file sharing software. In addition, the accused does not know the disputed work.

The defendant states that in addition to the use of communication tasks such as WhatsApp and e-mail, his smartphone serves as an essential source of information. He keeps up to date via relevant news apps on the Internet.

Defendant comes to secondary burden of presentation after...

As part of its secondary burden of reference, the defendant refers to other persons who can also access his internet connection. These are his wife and his two sons. "For the assumption that the owner of an Internet connection is without the addition of further circumstances regularly the perpetrator of a copyright infringement committed by this connection, there is a lack of sufficient typicality of the course of events. Given the obvious possibility that the Connected Party will grant third parties access to his connection, there is no reasonable likelihood of accepting the perpetrator's liability , "says lawyer Ehssan Khazaeli of the law firm Von Ruedenwho handles the case in charge.

...court is, however: enough is not enough!

The defendant has detailed his usage behavior and that of his family members. But since his investigation was also unsuccessful in the result, the court wrote that the explanations were too small.

The court demands the "use of" reasonably "available investigative possibilities". In the first step, the connecting party should therefore "consider the possible perpetrators. For substantiation, therefore, it must be stated who was "at home" on the day of the claimed download time and who was able to access which computers. "

In a second step, he should then confront the possible perpetrators with the alleged copyright infringement. In addition, one must demand an opinion of the perpetrators. It is not enough just to present the event to this person. It must also be made clear the expectation that the one who has to answer, his guilt. The confrontation with the known facts must therefore be supported by the will to know the actual or most likely offender. If several possible perpetrators, which result in the conclusion that it wanted to be nobody, would be exactly the same each again to confront. "

The court questions whether, after the accused's speech, "serious talks" were actually held. According to the submitted opinion, "matching" the Internet user behavior understanding and "approaching" the possible perpetrators is not enough . " In addition, there is no problem in letting the internet access through to a clarification."

Consequently, the court proposes a settlement in which the defendant has to pay the applicant a compensatory amount.

Lawyer: "Legal versions of the court recall psychoterror"

The court's ruling Von Rueden commented on the settlement proposal of the court:

"The owner of an Internet connection, in particular, can not be expected to reconstruct the exact daily routine of a day several weeks ago. For this purpose, it would be necessary that he creates motion profiles on the family members, in which he determines at any time of day or night, when, who is where and just accessing a computer. Or not. To require such a recording obligation would be absurd. [...] The limits of what is still reasonable in the context of the secondary burden of proof are exceeded where the defendant would be required to monitor the behavior of their family members. Monitoring the family members not only means an interference with the general right to privacy, but also poses the danger of a sensitive disturbance of the family structure.

And further:

"As far as the court points out, it is not enough simply to present the facts to the other user, but rather to demand that the one who commits himself to the act who is responsible for this (" express expectation ") should also take the latter for granted his. No one will assume that the connection owner would tell them this "just like that". So it is here: The defendant has reported the other connection users of the incident, in the expectation that someone confesses to the act. Also, the court's requirement to "confront all again" when no one is committed to doing so is likely to present an exaggerated understanding of the secondary burden of proof. The court expresses that it considers the secondary burden of

"The fact that the court, after the details of the infringement could not be cleared to prohibit the use of the Internet connection entirely, actually turns out to be extortion. Also a duty of instruction without prior evidence is not according to the case law of the Federal Court. After the "expectation" of the follow-up owner was disappointed, this can at best now make real teaching obligations. "

Submission of the case to the European Court of Justice is likely

The Tribunal suggested, on the basis of Von Rueden's arguments , that if "no amicable settlement can be reached at a hearing and then, in a final decision, a diverging legal interpretation of the Tribunal, the Tribunal will consider a referral to the European Court of Justice and this does not seem unlikely at present. "However, it would be for courts that did not finalize decided, no submission obligation.

Court insists on blocking the Wi-Fi connection for other users

The court's legal interpretation implies that "a follow-up owner should check blocking of the connection for other users if his or her efforts to obtain information do not prove the actual perpetrator, and make this clear in his efforts. "The court does not see in it any blackmail. "The court finds obvious that the cease and desist letter is demanded and takes place in such a way that legal violations are no longer allowed from this connection. Why then the representation of the necessary consequences that follow from a lack of knowledge of the actual perpetrator, should not be used as a means of investigation, does not open to the court. "

Lawyer: blocking the wi-fi password would be disproportionate

Attorney Ehssan Khazaeli from the law firm VON RUEDEN , then clarifies the court and informs that blocking the Wi-Fi password for all users would constitute a "significant interference with the freedom of information of the respective access users " . "Demanding such an intervention from a family internet access user would be disproportionately disproportionate." He also refers to an adequate decision by the European Court of Justice (ECJ, judgment of 15.09.2016, C-484/14, ZUM 2016, 965).

Contrary to what the court says, it is unlikely that a connection owner who has made an infringement of the connection will be expected to block this connection, which is already personalized by Wi-Fi password for all users. This represents a significant interference with the freedom of information of the respective connection users . "If the connection owner forecasts that the Internet connection would be blocked for all users, if nobody is committed to doing so, this simply constitutes a disproportionate extortion (not in the criminal law). "

It remains exciting...

A final court decision is still pending. It will be exciting to what final decision the court will come. In advance, there was already a strong struggle in court for legal interpretations and their implementation.

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