Intellectual Property Liability of Consumers, Facilitators and Intermediaries: The Position in Germany

Intellectual Property Liability of Consumers, Facilitators and Intermediaries:The Position in Germany
Jan Bernd Nordemann

ISBN 978-90-411-4126-2
2012 Kluwer Law International BV, The Netherlands

Internet piracy is not a phenomenon confined to Germany. The reasons are comparable in many countries world-wide and are of a complex nature. A key reason, however, is down to the nature of the internet itself. Generally speaking, the infringers are able tocommit their infringing acts anonymously. Investigating the identity of the person or persons responsible is a costly, time-consuming process and is often impossible. The disadvantage of bringing an action against individual infringers is also that each infringement has to be prosecuted individually – a process which is also laborious and expensive considering the sheer number of infringements concerned. Therefore, it is logical to consider not only taking action against the infringing consumers, but also against suppliers of internet services who provide infringers with the relevant infrastructure and thus make the copyright violations possible in the first place. Legal action against such providers may even have a much greater effect than that against individual perpetrators, as the German Federal Supreme Court (Bundesgerichtshof,BGH) has already recognized.2 This paper therefore looks at how infringing consumers may be identified through their (dynamic) IP-address, at the liability of an interne access owner, whose access was used by a third party for a breach of copyright, and at hosting providers and access providers (mere conduits) in respect to their liability under German law for copyright infringements.