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Parents Not Liable For Their Son's Illegal Music Sharing, Says German Court
An anonymous reader sends this quote from an IDG News report:
"A German couple are not liable for the filesharing activities of their 13-year old son because they told him unauthorized downloading and sharing of copyrighted material was illegal, and they were not aware the boy violated this prohibition, the German Federal Court of Justice ruled on Thursday. ... The ruling of the Federal Court of Justice reversed a ruling of the higher regional court of Cologne, which found the parents were liable for the illegal filesharing because they failed to fulfill their parental supervision. That court said the parents could have installed a firewall on their son's computer as well as a security program that would have made it possible to only allow the child to install software with the consent of his parents. Besides that, the parents could have checked their son's PC once a month, and then the parents would have spotted the Bearshare icon on the computers' desktop, according to the Cologne court. 'The Federal Court overturned the decision of the Appeal Court and dismissed it,' the court said."
So does this mean a 13 year old will bet sent to jail?
Sounds like a neo-Hackers movie in the works...
how to justify the 13 year old's apparent love of music from the 60s and 70s...
"A door is what a dog is perpetually on the wrong side of" - Ogden Nash
Those parents who are not aware of what the sons are doing, are doubly liable. This is one of the parents duties: watching over the sons!
Sent as ripples into the electromagnetic field. No single photon has been harmed in the process.
Bad enough that your teenager might wreck your classic sports car, get busted for trying to buy alcohol or cigarettes, become a sex offender for sexting, cause a pregnancy, or thousands of other delinquent acts. At least if they commit piracy, you're personally off the hook now. Too bad your family isn't. You could disown the kid, I suppose.
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
But what if a kid steals, gets into a fight or robs people? Who will be liable?
If something leads to civil or criminal liability then either the child is responsible or the parent/guardian bears some responsibility.
Just because you don't want something to lead to civil/criminal liability it doesn't mean that it's a victory to create edge cases where someone escapes the law.
The solution must always be to remove that liability via the legislative process.
Otherwise it's just "most expensive lawyer wins".
If the 13-year-old commits murder, are the parents liable? Are the parents liable for any of the kid's law-breaking actions?
How's downloading illegal music any different?
With a name like "Bearshare" what parent wouldn't immediately recognize the the threat. It's not like cartoon bears and sharing are appropriate subject matters for young children.
You don't see the difference between killing someone and downloading music illegally over the internet?
"Age of criminal responsibility"
Differentiating between crimes isn't done in this fine scale (i.e. at 10 you can murder, but at 15 you can't, etc.) - you're either criminally responsible for your actions or not. The offence only determines the severity of the crime, not your capacity to know better.
Most countries have this at an age where the child should "know better", i.e. usually around 10 years old. Below that age, you can't be "criminally responsible" for the acts you've committed, because it's unlikely you understood what you were doing or what the impact would be (i.e. a toddler pushing another toddler off a high-rise block of flats while playing).
What you're confusing is the SEVERITY of the crime, and the capacity to know whether what you're doing is wrong or not. The severity of the crime determines the possible "punishment", the capacity to know what you were doing determines whose fault that was (i.e. parent for leaving you alone, you for not knowing better, etc.)
OP is trying to understand the German liability laws for parents, not make a moral comparison between the two
Causation is clear. How does liability not follow? Why is it murky for downloading and black and white for every other law?
Sure, after all downloading music in the internet is a considerably graver crime and should be punished at all costs, even by transferring the responsibility to the parents, whilst the comparatively mild crime of murder obviously should not.
The 13 yr old probably knows more about how to circumvent the measures suggested by the earlier court than the parents know about installing them. It was a stupid ruling and should have been struck down. The only reason for it is that those that are prosecuting know that the parents have money and the boy does not.
I love stacking my barbecues in the shed at the end of summer - you can't beat a bit of grill on grill action.
Parents do need to take a more active approach to "protecting" or "limiting" there children online. You always hear how a computer is filled with xxx or yyy and the parents had no idea. I think that is BS, if the parents aren't going to take an active stand then they have nothing to complain about. It's not even hard, decent security software is available for low cost and easy setup. It wont prevent the children from breaking the rules but at least if the rules are broken the parents can know they at least attempted to protect there wishes.
If the 13-year-old commits murder, are the parents liable? Are the parents liable for any of the kid's law-breaking actions?
How's downloading illegal music any different?
That would depend on whether or not they've neglected their parental duty of supervision.
In this case the court found that it is sufficient to teach the kid the rules that apply when using the internet because the parents had no indication that their son would not comply.
Of course after this incident they do have to watch and/or restrict his internet access by additional means.
The same applies to any action of your kids - if the parents have fulfilled their parental supervision within a reasonable extent they're off the hook. "Reasonable" obviously depends on the the circumstances and ultimately the court's ruling, but spying on your kid every second of the day is surely deemed "not reasonable".
Children are not adults, this means they require parental guidance, can't make certain decisions for themselves etc...
So yes, we actually do hold parents responsible for some of the things their kids do. (I'm not from Germany)
Example: your kid goes to his friends house and breaks a window, you would probably pay for it not?
Your kid vandalizes some of the schools property, again you'll probably pay for it and are deemed to punish your kid appropriately
your kid does illegal things on the internet; suddenly the parents are no way at all liable.
Now, I actually don't consider downloading music a criminal offense or even illegal. I don't know the case for Germany.
What I do find odd is the first courts decision:
That court said the parents could have installed a firewall on their son's computer as well as a security program that would have made it possible to only allow the child to install software with the consent of his parents.
Let's face it, neither the judge nor the parents can probably explain what a firewall is, let alone install one and configuring it to stop 'piracy',
And if programs need installing, it's probably the kid that does it.
Parental duties is one thing, policing your kids is another. We don't want to live in an Orwellian police state, so we definitely aren't going to push that on our kids.
"That court said the parents could have installed a firewall on their son's computer as well as a security program that would have made it possible to only allow the child to install software with the consent of his parents. Besides that, the parents could have checked their son's PC once a month, and then the parents would have spotted the Bearshare icon on the computers' desktop."
All of that is true. But expecting that of average parents is expecting them to have a fair bit of technical knowledge, and while the "Bearshare" icon might have been reasonably obvious, recognizing it for what it was would presume the parents know about that program versus the kajillion other icons that might have been scattered around on the desktop, and it assumes the solution for the kid wouldn't have been "Fine, I'll delete it. [deletes icon off the desktop]", which of course doesn't *really* delete the program. The parents have to understand the tool before they can *effectively* monitor its use. You might say that no parent should allow 13-year-old kids to use a computer connected to the internet unless they do have that kind of technical know-how, but if if that was the case most of the geeks around here would be fine, but you'd have to bar a lot of parents and teenagers from using a computer on the net, probably the great majority of them.
To use the inevitable analogy, it would be like insisting that parents were car mechanics before they could allow their child to drive.
Probably not but the kid is. Big difference between a felony and a civil issue anyways. Even then the kid should be treated a lot differently than an adult in respect to the felony.
I'm a parent I believe in parental responsibilities at the same time I'm not the sue everybody sort. My son stole something once he was 2 and a half at the time, I noticed a couple minutes later brought him back into the store had him give it back and apologize. I do not think you need to get into litigation, police etc, this is part of growing up and being a parent. I think the thing people tend to forget is the parents need to be the ultimate authority as far as the child is concerned to do otherwise undermines there ability to parent. By the RIAA/MPAA definition reading a magazine in the store constitutes theft and you should pay 1000 times the real value to account for the people they did not catch and and the store should enforce this for them, check out lines would never be the same.
No sir I dont like it.
...time to send the kid to a labor camp now.
American in Germany here.
Well the whole case is a civil case. It simply says that the Parents don't have to pay for any civil damages that may arise due to the illegal activies of the child. The child alone is responsible. Furthermore, since the child is not old enough to be held legally responsible the music industry basically just have to sit on their civils claims. So no one pays, but the child did do something illegal. Since this is only a civil case, there are no further actions that can be taken.
I don't have access to the first courts ruling.
But during the higher courts session it became clear: THEY HAD A FIREWALL and had tried to restrict his users rights to install new software.
Ofc. it is beyond any laymans responsibility to install aditional software to 'guard his children' from illegal activities.
Even more annoying: the law situation is crystal clear. Nevertheless the 'music company' sued in the hope to get a cheap victory in a lower court from an unexperienced judge.
Cost free eBook I read (by iBook/Kobo/Amazon/ObookO/Gutenberg etc.): "The Green Odyssey" by Philip Jose Farmer.
You do know the difference between civil and criminal law right?
Murder is a criminal offense and would be tried in a criminal court where the rules of punishment range from fines, probation, jail time and even death in some locations. Criminal cases are brought by the state and prosecuted by the state for violating criminal laws.
Downloading music in violation of copyright is a civil matter. The state really doesn't care that much if you do it and are not likely going to be interested in tracking you down and hauling you to court for it. The state does not actively enforce copyrights or look for people who violate the copyrights of others. However, the copyright owner does have the right to sue for infringement and collect damages in civil courts. The RIAA is just a group of copyright holders who have banded together to find people who infringe on copyrights and take them to civil court and recover damages.
The question being asked here is what is the civil responsibility of parents when their children are taken to civil court and loose. It seems that in Germany, the collection of civil judgments against minors just got a lot more difficult. Given that most 13 year old kids don't usually own that much or even have a job, I suspect this will pretty much squash any attempts to sue kids for sharing music in Germany at least.
"File to fit, pound to insert, paint to match" - Aircraft Maintenance 101
Well, downloading illegal music is a criminal offense. Illegally downloading (legal) music is a civil offense. Illegal music in Germany would e.g. be Nazi songs etc...
cpghost at Cordula's Web.
Causation is clear. How does liability not follow? Why is it murky for downloading and black and white for every other law?
Umm, the parents presumably supplied the kid with the equipment used to do the illegal downloading.
Would the parents incur any liability under German law if they left an unsecured gun around the house and the kid used it to kill someone? What if the gun were properly secured?
OP is trying to understand the German liability laws for parents, not make a moral comparison between the two
A parent is liable if they neglect to supervise their children properly. Courts will take a common sense approach to this. A 13 year old is capable of making their own decisions, and capable of doing things on their own. You are not neglecting to supervise them if you tell a 13 year old what to do and he secretly does it.
Many people in Germany have liability insurance. So if your five year old scratches your neighbour's car, the liability insurance will ask if you neglected to supervise your child properly. The correct answer is YES. Because it is then your fault, you are liable, and the liability insurance pays the damage. If you say NO, then it was nobody's fault, a five year old is not responsible for what they are doing, and it's just tough luck for the neighbour.
the criminal standard of proof are to high for most of the file sharing cases.
Ever more so if they just have a IP and did not even download the file from his system.
IP address have a lot of ISP errors that can flag some one who did not even share a file at or even flag a printer as a file shearing system.
Then the correct answer is NO.
The question being asked here is what is the civil responsibility of parents when their children are taken to civil court and loose. It seems that in Germany, the collection of civil judgments against minors just got a lot more difficult. Given that most 13 year old kids don't usually own that much or even have a job, I suspect this will pretty much squash any attempts to sue kids for sharing music in Germany at least.
No, collecting money for causing criminal damage for example is no problem. They will wait until you make enough money. The problem with a 13 year old will be that you have problems holding him responsible in the first place, which is why they tried to go after the parents. And another problem will be to get a huge monetary amount for copying music in Germany, against anyone. I would be quite sure that if a fourteen year old smashes up your car intentionally, he'll pay for it. Eventually.
So the problem is not collecting, the problem is convicting.
Would the parents incur any liability under German law if they left an unsecured gun around the house and the kid used it to kill someone?
IANAGNAL, but the rational thing would be to have leaving an unsecured gun be the same crime whether someone got to it and used it or not. The severity of a crime should not be affected by happenstance.
Which is why I'm also not happy with how we distinguish between murder and attempted murder. The criminal act is the same - if two people shoot at two victims with the intent to kill, it makes no sense to me that if one of them survives, the sentencing should be different. The crime stopped when the trigger was pulled, and what happened afterwards is not part of the crime. The effect can not change the cause, unless you apply religion instead of reason.
If the 13-year-old commits murder, are the parents liable? Are the parents liable for any of the kid's law-breaking actions?
How's downloading illegal music any different?
...when their child commits murder? There are plenty of cases in the US and the UK available to research. Unless you hand your kid the gun, or don't leave YOUR gun lying around (applies to the US mostly), only the child ends up in (a special, depending on age) court. Then of course, in the US there are plenty examples where a 12 year old is tried as an adult, but that still leaves out the parents.
As for your second question, of course! If they are directly responsible. You cannot send your child to commit a crime thinking YOU won't be punished.
Your 3rd question, you DO know that even in the US civil and criminal law are two very different things?
So, to sum it up, are you just trolling because you immediately dislike something you hear, and are too lazy to invoke some more modern parts of your brain instead of just the knee-jerk reaction part?
...does this mean they pay royalties when they sing "Happy Birthday" to him?
If not... HYPOCRITES!
Maybe in Germany? In the US as far as I can tell, downloading is nor more illegal than bringing bootleg CDs home that you bought on the street of some third-world country, or bringing home a counterfeit good you bought in China on the street. It's the sharing and uploading that is the apparent illegal part. Not to mention profiting. Is this not true?
"The UN Convention on the Rights of the Child, which entered into force more than two decades ago, expressly prohibits the imposition of life imprisonment without the possibility of release for offences -- however serious -- committed by people under 18 years old. All countries except the USA and Somalia have ratified the Convention.
USA the land of freedom. Well not if you are a child obviously.
I have the distinct feeling that you forgot a "not".
If a 13-year old (or younger) child commits murder or another crime (in the sense of public law), it is not charged. If a 8-year-old (or older) child commits a forbidden action (in the sense of private law), it can be charged if it understood that it was responsible for a forbidden action at the time of commiting it.
In both cases, however, the parents are liable if they did not fulfill their duty of parental control. This obviously is a hard decision. It depends on the child, its past, on the parents and on what the public can expect parents to do in order to control their children.
Just buy them Apple devices. There's so many restrictions and content control you won't have to worry about anything.
A recent visitor of mine reported that at the age of 12 he installed a key logger to get the password that his parents had put on his PC to limit his use of it... He only told his dad recently (he's 19...) The court is clearly right in refusing to hold the parents responsible. It's HARD!
And Paula Cooper is not one of those 2500 children, because after the wacko left got her death penatly revoked, she was only given 60 years, after she and three friends broke into a 78 year old womans home where she proceeded to stab her 37 times.
You are almost there, just keep looking at it.
If a 13-yr old commits murder, then the 13 year old committed murder. Unless the parents told him to do it, or helped him plan the murder, they did NOT commit the murder.
That's the key thing here that really makes these lawsuits against IPs or account holders asinine: The law breaker is liable for the law breaker's actions. The key facet is that the person who broke the law, is the person who should be punished for breaking the law.
Parental responsiblity for crimes only applies if it can be proven that the parent knew that a crime was about to be committed. Even then, if the parent took action to deter the crime, it is VERY difficult to show that such action was insufficient. It is very difficult to prove because you can't just say "Well, they did this, and since that didn't work, it was insufficient." You have to prove that not only was the parent aware of the impending crime, but that the parent knew that the deterrent they applied would be insufficient to stop such behavior. That's a very difficult thing to prove.
Back on topic, what happened here isn't that someone is not being punished for a crime, but that someone who didn't commit the crime is not being punished for the crime.
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
That court said the parents could have installed a firewall on their son's computer as well as a security program that would have made it possible to only allow the child to install software with the consent of his parents.
Let's face it, neither the judge nor the parents can probably explain what a firewall is, let alone install one and configuring it to stop 'piracy',
And if programs need installing, it's probably the kid that does it.
Parental duties is one thing, policing your kids is another. We don't want to live in an Orwellian police state, so we definitely aren't going to push that on our kids.
Note that it was the lower-level court who talked about installing firewalls, and the federal court overturned this.
Don't know about German law, but in the US... Collecting money for damages is civil law which is separate from criminal law.
Doing damage to a car that is not yours by say breaking all the glass with a hammer, would be a criminal offense. The local government may go after the criminal charge and haul the kid into court (or not). The prosecutor is not tasked with collecting damages for crimes he prosecutes, but they can ask for payment of damages as part of punishment if they decide to.
Even if ordered paid as part of punishment for a crime, the actual damage remains a civil issue. If the victim doesn't get paid for damage, they is free to sue and use the criminal conviction as evidence. Even if there where no charges or the kid was acquitted one would be free to sue for damages in civil court.
Sharing MP3's is not necessarily a criminal offense. Further, it is unlikely to be something the local DA would be interested in trying in criminal court if it was. You might get local police to step in and stop commercial duplication and distribution infringement operation, but usually you need to get the attention of the FBI for that. Most copyright crimes are Federal and not state or local and have more to do with distribution and mass duplication. A kid with a computer is not likely to get much attention at the Federal level, they are busy with other things.
Which is why all this kind of thing usually boils down to civil court actions and rarely involves criminal charges.
"File to fit, pound to insert, paint to match" - Aircraft Maintenance 101
Huh? Currently it is 10 in england, 6 to 12 in the USA (varies by state) and 14 in germany (which covers the case in this article as he is 13).
Several countries have different ages of responsibility, e.g. when I was a teenager it was 10 years for murder/manslaughter, 14 years for other crimes. This led to some confusion when a kid was accused of raping someone but the law said he was physically incapable of that, so they added a 12-13 year old band for rape etc.
I see that in iran it is 9 for girls but 15 for boys.
Can be tried as a murderer at 10yo but cannot have sex until 16 or even 18 in some places? Doesn't make sense. None.
That court said the parents could have installed a firewall on their son's computer
For sure, all parents should be able to know how to configure multiple accounts with correct right management so that the other users cannot modify the firewall configuration, and configure a firewall to disallow all programs to connect to anything other then 127.0.0.1 except a white list. Oh and they have to find a way to disable websocket from the browser.
as well as a security program that would have made it possible to only allow the child to install software with the consent of his parents.
And of course a 13 years-old kid is not capable of cracking that kind of crap.
They could have also moved to China.