German Court Finds Mother Liable For Kid's File Sharing, Despite Her Ban On The Practice
from the talk-about-secondary-liability dept
One of the issues we’ve had with the use of IP addresses as “proof” of file sharing, is that there can be many users and many computers coming from a single IP address — and lots of times we’ve seen parents sued for actions of their kids or even their kids’ friends. Now, under any common sense approach to the world, you would think that this would be seen as a problem. Occasionally, we’ve heard entertainment industry execs say that it doesn’t matter, and it should be the responsibility of whoever pays for the connection to make sure it’s not misused. For the most part, though, our judicial system realizes that you don’t blame the wrong party.
Apparently, over in Germany they feel differently. A woman, whose son apparently used file sharing programs despite the mother’s explicit ban on such things, has been held responsible for the son’s file sharing. The court said that simply banning her children from file sharing was not enough — she should have actively monitored the connection. That seems like an incredible stretch — and even makes you wonder if the judge has children.
Either way, I can see no reasonable argument for blaming a third party for someone else’s actions, and it’s even worse when that third party specifically told the others not to take part in the activity.
Comments on “German Court Finds Mother Liable For Kid's File Sharing, Despite Her Ban On The Practice”
so, if you live in Germany and have wireless, make sure it is damned secured. you can now be fined for something a wardriver does. nice.
This judge doesn’t have children or common sense.
From now on
German parents should only allow their children on the internet with direct supervision. And I mean they should lock the modem in a safe unless the parents are looking at the computer screen of the child
Others too.
Well then, shouldn’t the ISP also be held responsible? And the manufacturer of the computer as well? And then there’s the power company that obviously didn’t do enough to make sure no one misused its electricity. It should have “actively monitored” that usage.
Parental Responsibility
Mikes logic is a bit tortured on this one.
It’s not a case of ‘who owns the connection’, but that parents are held accountable for the actions of children in their care.
“Well I told him not too” wouldn’t be considered much of a defence for more serious crimes, would it?
Re: Parental Responsibility
So if the your child murders someone then you go to prison?
Re: Re: Parental Responsibility
If they are a minor, yeah, you can be prosecute and the kid sent to juvenile detention.
Re: Re: Re: Parental Responsibility
Because that makes so much sense…
Re: Re: Re:2 Parental Responsibility
If the parent is found to have failed in their duty of care then yeah, it makes perfect sense.
Parents have a responsibility to raise their kids within the law, not drop them on society to sort out.
Re: Re: Re:3 Parental Responsibility
Would you mind citing proof for that? I have never heard of a case where the parent tried to prevent their child from doing something and were criminally charged with a crime.
Re: Re: Re:4 Parental Responsibility
I think that is the point…the parent obviously didn’t try very hard to stop the child from doing what they did. The parent has to make a reasonable effort. Simply saying “Don’t do that” is not much of a reasonable effort. imho.
Re: Re: Re:5 Parental Responsibility
So basically you’re saying it’s the parents fault for not being more computer literate than her son , and for trusting them.
Does that mean parents are now criminally liable for their children’s drug use, whether they are aware of it or not, even if they tell their child not to?
At some point their has to be personal responsibility here. I challenge you to name one thing a responsible, reasonable parent should have done that this parent did not.
Re: Re: Re:5 Parental Responsibility
So does that mean that every teen mom out there can get child support from her baby’s daddy’s parents?
Re: Re: Re:5 Parental Responsibility
i would, generally speaking and allowing for the proper exercise of common sense where aplicable, agree with you…
if any more serious action that isn’t equally unenforceable hadn’t been rendered illegal in this country …
note that ‘this country’ is neither Germany nor the USA, just in case anyone’s confused.
(seriously, if a cop wants to make your life hell, they Can run you through the courts for yanking your kid out of the way of an oncoming truck. Now, in this particularly ridiculous example, you’d win, but all it takes is sufficient vindictiveness or lack of intelligence on the part of *thinks* two or three people? and you’d still have to go through the process. government protestations to the contrary, the way it’s worded you Can go to jail for abuse if you slap your kid’s hand to prevent them pulling on, say, a jug cord which is currently attached to a jug full of boiling water…)
yeeeah, got off on a tangent there.
so, yeah, al, i agree with you… but if Germany’s laws are anything like New Zealand’s (and i seriously doubt they are, or our government would use them rather than Finland as an example of ‘how to do it right’ even when it doesn’t work), all it takes is a kid who’s not a total wimp and the parent can’t do anything about it without getting in trouble that way too.
gah. this comment keeps going in circles! it has no end!
stopping now :S
Re: Re: Re:6 Parental Responsibility
“the way it’s worded you Can go to jail for abuse if you slap your kid’s hand to prevent them pulling on, say, a jug cord which is currently attached to a jug full of boiling water…”
I’d love to see a citation for that one. Personally I’m very much in favour of parents having freedom in bringing up their kids but any parent who can’t deal with a jug of water without resorting to a slap doesn’t get a lot of sympathy from me. Option one: move the jug of water. Don’t worry, there are plenty of others that don’t involve violence.
Re: Re: Re:4 Parental Responsibility
http://www.wral.com/news/news_briefs/story/6126208/
Parents charged with “not securing a gun in their home” resulting in the death of child (at the hand of another child). Not the same as being charged with murder, but it’s still being held criminally responsible for their failure keep a minor from doing dangerous/illegal things with their property.
Re: Re: Re:5 Parental Responsibility
Parents charged with “not securing a gun in their home” resulting in the death of child (at the hand of another child).
The parents were charged with with a violation of the storage of a firearm to protect minors law, not for what their child did with the gun. Big difference.
Not the same as being charged with murder,…
No, it certainly isn’t. Again, big difference.
but it’s still being held criminally responsible for their failure keep a minor from doing dangerous/illegal things with their property.
No, it isn’t. It’s being held accountable for their own violation of the law. That would have been the case regardless of the actions of their child.
Re: Re: Re: Parental Responsibility
lol what cases do you know do this? I don’t remember the columbine parents getting jail time as if they killed 40+ kids.
Re: Re: Re:2 Parental Responsibility
Well typically it’s not as much criminal liability as civil. If your kid goes and throws a rock through the neighbor’s window, you’re the one responsible to pay the neighbor to repair it, even if you told the kid to not throw rocks through windows.
Re: Re: Re:2 Parental Responsibility
I do believe that this mother was not particularly savvy with computers but if she knew enough to actually ban it in the first place why didn’t she know enough to enforce her own rules in her own house? Responsibility does fall on parents to control their children, especially in their own house. I don’t agree that the mother should be completely liable in this case but then who is? Someone broke this law, (even if it is a bad law) who pays for it?
Re: Re: Re:3 Parental Responsibility
So, you’re saying that being aware of P2P downloading is the same as having the technical knowhow to monitor and block said traffic on the home PC?
“Someone broke this law, (even if it is a bad law) who pays for it?”
The person who broke the law. Is that really so hard to understand?
Re: Re: Parental Responsibility
If you provide the weapon and opportunity yes. In this case the mother provided the internet connection and computer. It is very much an analogous situation. The parents are responsible if a child walks out of a store carrying merchandise while under the parents supervision… and while I’m all the way in support of the infinite goods versus stealing finite goods argument… it is still the parents responsibility whether it is copyright infringement or stealing merchandise.
Re: Re: Parental responsibility for Civil cases vs Criminal cases.
There’s a big difference between a civil case of downloading copyright protected works and a criminal case of murdering someone.
Parents (in the US, in Germany, everywhere) have ALWAYS been legally responsible for civil damages (as determined in a civil lawsuit) for actions done by their minor children.
Re: Parental Responsibility
A computer with access to the internet is necessary for school-aged children. The mother doesn’t understand computers well enough to monitor the connection. If you watch kids all the time they have to use the computer, you don’t have time for any parenting. And if they were using a file-sharing app, there’s no guarantee she would even know what it is. So what was she supposed to do?
Re: Re: Parental Responsibility
‘If you watch kids all the time they have to use the computer, you don’t have time for any parenting.’
Isn’t keeping an eye on your children ‘parenting’?
This argument is full of double-standards.
When the media blames violent games for kids hurting each other, we point out that parents should control what games their kids are playing, and not ignore age restrictions.
When Government threatens legislation or net filtering to protect kids from porn and other nasty stuff they might stumble on because the parents don’t understand it we say no, the parent should not be ignorant and take time to learn the technology and what their kids are doing.
Now its a Court and Filesharing, and suddenly the situation is completely reversed? The parent should bare no responsibility for what their kid is doing on the net?
I agree with the general principal that we shouldn’t prosecute the owners of net connections for the actions of other people using it, but that doesn’t mean parental responsibility goes away too.
Re: Re: Re: Parental Responsibility
@Steve D: Either you have no kids, or they are such perfect examples of human life that they have never done anything without your knowledge. (Rolling Eyes)
Re: Re: Re: Parental Responsibility
I’d be capable of doing either, but it’s a lot easier for a non-tech-savvy parent to lock down a modern game console than to lock down a computer.
Re: Re: Re: Parental Responsibility
I’m curious to know how you think a parent is supposed to outsmart their 1000x more tech-savvy child 24/7.
Re: Parental Responsibility
“Well I told him not too” wouldn’t be considered much of a defence for more serious crimes, would it?
Well, I don’t know about Germany, but I remember a case here in the US just the other day where a kid was found guilty of killing another another kid. Now we don’t execute young children in the US (because of some misguided international law against such things), so we just executed the parents instead on the basis that they were “accountable for the actions of children in their care.” And as it turns out, this was an 3-generation extended-family household, so the grandparents are next.
Oh, wait… that didn’t happen, because (in the US at least) parents are NOT automatically accountable for the actions of their children, even if one breaks a law.
Re: Parental Responsibility
When is it no longer the responsibility of the parents? If the child takes a laptop to the local coffee shop and downloads a bunch of infringing files, are the parents to blame? What if the infringement happened while the child was in the care of a babysitter or at school? Does the blame get transferred to the person who should have been watching them at the time it happened?
And you do really need to consider the implications of blaming the parents. What if this is a foster child? Is it the state, the natural parents, or the foster parents to blame?
I’m fairly shocked that any judge would open a can of worms this big.
Re: Re: Parental Responsibility
‘Does the blame get transferred to the person who should have been watching them at the time it happened?’
Absolutely.
If kids are found to be torrenting stuff (illegally) over the school network, then the school or the person responsible for them can get into big trouble.
I’m getting a bit confused why so many people are trying to to pick holes in this; isn’t it obvious?
Does common sense get thrown out the window on this blog every time someone brings up filesharing?
Re: Re: Re: Parental Responsibility
Apparently it does, since you’ve not shown a lick of it, yet. It is not physically possible to spend all your time monitoring your children. Something you would be aware of had you any of your own. That is why we teach them responsibility and accountability. You’re suggesting that the child should never be accountable for doing something wrong, and that is simply bad parenting.
Re: Re: Re:2 Parental Responsibility
Parental responsiblity is pretty easy to set for the internet. The computer is only on when a parent is around, the computer is in a “public” part of the house where the children can be monitored, and just as importantly, the parent should take some interest in what the children are doing online.
Giving your child a computer with an open internet connection and allowing them to use it in their bedrooms behind a closed door is just asking for trouble. The internet isn’t an electronic babysitter.
Re: Re: Re:3 Parental Responsibility
The internet isn’t an electronic babysitter.
You are correct. The internet is, in fact, a communications device. Like the telephone.
Re: Re: Re: Parental Responsibility
That would encourage non-technical parents to either 1) not have a computer in the house or 2) password-protect it, not give the kids a password, and tell them to go somewhere else to do their computing. Anywhere else, because according to your idea, as long as they’re not at home, it’s not the parents’ problem.
I would rather see a solution that encourages parents and everyone else to obey the law, but what that solution is for cases like this is unclear IMO.
How about taking one minute out of her busy day to see if file sharing software was still on the system?
Then if it was, taking away his computer until he stops.
It might not stop the file sharing on his part (he can go outside the home), but it might have saved this woman some trouble. I don’t agree per se with the legality (need to see the details more first), but as far as “parental responsibility”, she sure as hell didn’t make that much of an effort. Stop acting like she was parent of they year, and did all she could. Apparently, she didn’t. The legal issue is seperate, and I’ll comment when I read more on that.
Re: Re:
The problem is the mother was likely not very technically savvy and wouldn’t have know what to look for anyway. Also it’s incredibly easy to run things like uTorrent off of usb drives so that there is little to no evidence left on the host computer. How is someone who doesn’t understand the technology supposed to stop someone who does, as is often the case with parents vs children.
Re: Re:
You can share a file with e-mail, or flash drive.
Re: Re: Re:
You can even share a file by hand!
I think that the entertainment industry will eventually get sick of suing there own customers and will figure out a new way to deliver content. Things like hulu and youtube. I can only hope.
American Parent Liability Child's Act
For all those “Well I don’t know about Germany, but in America…” people; yeah, the US has these laws too.
Go read this and educate yourself, before your kid starts torrenting stuff. 😛
http://www.enotes.com/everyday-law-encyclopedia/parent-liability-child-s-act
Pay particular attention to this bit:
“A parent is liable for a child’s negligent acts if the parent knows or has reason to know that it is necessary to control the child and the parent fails to take reasonable actions to do so. This legal theory is known as negligent supervision. Liability for negligent supervision is not limited to parents. Grandparents, guardians, and others with CUSTODY and control of a child may also be liable under these circumstances. There is usually no dollar limit on this type of liability. An umbrella or homeowner’s insurance policy may offer the adult some protection in a lawsuit.”
Re: American Parent Liability Child's Act
Most parents don’t know that they need to watch for this, or what reasonable actions would be. With the current laws, both the parents and the children are likely breaking laws every single day, and don’t know it.
That’s a tough one. On the one hand I agree that parents have to take care of their little brats. Children are usually immoral and dumb as bricks and parents need to carefully watch what they are doing on the Internet. There are plenty of possibilities for parents to gain control over the situation, so no excuses there.
On the other hand I agree with the comparison that parents are usually not held responsible for their children committing different types of crime, that occur “in real life”. That also applies to Germany. At worst they’re taken away from their parents (that happens in very rare and extreme cases) or they face youth prison if they’re at least 14 years old.
But well… this court sentence is really a bit of a stretch. Unfortunately the nutjobs from the music industry have an enormous influence here and they make German wifi owners pay ridiculous fairy tale amounts of money if they can proof that some illegal activities occured through their Internet connection.
what's the point?
from the torrentfreak link:
All this only to pay lawyers?
Parents should be responsible
Like it or not, the parents should be responsible for the acts of their children. It’s a pretty simple concept that seems to be lacking in much of the world these days.
The simple act of saying “you can’t file share” is meaningless without actual supervision and enforcement, no different from “eat your peas” or “no video games in a school night”. Either you enforce it, or it is meaningless.
Too may parents make the mistake of allowing internet access from the child’s room or other area where they are not supervising the online activity, which allows the children to get into all sorts of trouble.
In the end, the parents need to accept their responsiblity.
Re: Parents should be responsible
Either you enforce it, or it is meaningless.
Yes, yes! Like copyright laws.
Re: Parents should be responsible
So smaller people shouldn’t be help responsible for their actions? How are you supposed to turn them loose on the world at 18, if they’ve spent 18 years without responsibility?
How do you expect parents to teach their children without letting them make mistakes? Or do you think that they’re going to wholeheartedly listen to what their parents tell them?
How far does this go? Are parents responsible if the State issues a license to a 17 year old, who then gets into a crash? How about a 16 year old who gets his girl pregnant? Are the parents responsible for the new baby?
Do you think that parents should monitor their children 24/7, and never let them out of their sight, for fear that they might break a law?
What happens if the parent does monitor computer use at home, and the child shares files at school, at the library, on a borrowed computer, or in a computer cafe? Who’s responsible then? What happens if the 16 year old purchases his own netbook and then drives his own car to Starbucks, where he uses a wireless connection to fileshare?
Is Starbucks responsible? Are the parents responsible? Or is the man-child responsible?
How culpable are the parents, anyway? In a case of abuse or neglect, both parents are responsible, even if one parent doesn’t live in the home. How does this work with your concept of parental responsibility? Is it 80% culpability for the in-home parent, and 20% for the absent parent? 50/50? Or 100% on the in-home parent?
What if other adults live in the home? Are they responsible, as well? What if the other adult is elderly or an 18-year-old sibling?
What if a friend brings a laptop or netbook or smartphone into the home and uses it to fileshare? Is the parent of the friend responsible or the parent who owns the home? Or is it the person who owns the Internet connection (which may very well be the child)?
Personally, I think that the child, in this case, should be held responsible for their own actions.
Re: Parents should be responsible
Well, time to throw your parents in jail for raising you, then.
Re: Re: Parents should be responsible
TAM wasn’t raised by his human parents. They left him under a bridge where he was raised by some trolls.
It’s the only life he knows.
Liability
So…if the woman violates her probation, or skips the country or something, does the judge go to jail for failing to make her serve her sentence? I mean, it was his responsibility to make sure she served her sentence, right?
If I secure my network from my kids or any wardrivers and I actively monitor it for use of file sharing programs. Can I bill the RIAA for my time spent? Or maybe just the Judge?
It’s all nice and dandy that you techheads talk about what could be done, and talk of technical literacy. Nice red herrings. She warned her son. She showed knowledge of what file sharing is. Since she obviously is at least literate to know what a program is, you know, that software that runs on the computer hardware, the facts seem to suggest she could have recognized a file sharing software, and removed it. That isn’t rocket science. It’s very, very simple. She could have confronted her son if she didn’t know how to do a basic uninstall, or AGAIN removed his computer. Problem solved. No computer= no flash drives, no need to uninstall programs, no techno-literacy. Just take the hardware brick, unplug, and lock it away. Is that to tech savy? Hey techheads, guess what? Your failure at basic logic, and strawmen arguments are showing. You may not agree with the law, but let’s not try and be completely idiotic on the parental responsibility. AGAIN, if you want to argue why she shouldn’t be LEGALLY liable, OK. There isn’t an much of an excuse for her not being a responsible parent. Stop creating false scenarios.
Re: Re:
Because, obviously, a child wouldn’t know how to hide the program in a place a parent would be unlikely to find it, or to run it off an external device, or to uninstall it after using it, or to rename it to something else and change the icon, or to…
Re: Re:
Right, because I for one could not possibly hide my computer activities from my parents when I was young. Except actually I was far more computer literate than not just my parents but the school technicians. If people being paid to keep kids out of their systems can’t manage it on average then how are parents supposed to?
Not to mention, file sharing programs aren’t illegal. Are you seriously suggesting that parents should disallow their children from using such things altogether?
There seem to be plenty of problems parents have with dealing with their children without adding the fear of liability for an act which is harmless to the list of worries. Unless of course you’re seriously worried about all that pocket money the companies are losing from kids who apparently aren’t old enough to be held responsible for their actions but are old enough to be targeted by advertising.
@nasch: You misunderstand a little. I was only refering to a method that would work to limit LEGAL responsibility. Of course there are practical limits parental responsibility, such as an act occuring outside the home.
How about option 3) Educate yourself as a parent? A better response would be to have a parent educate themselves to a child’s interests, technical or otherwise, and educate themselves to the best of their ability on these interests, their potential harm, and how to limit this harm, within their own ability. Nothing more, nothing less. To simply say (esentially) I took “reasonable” steps, when according to the facts at hand,the limit of such steps were not reached, is not acceptable. That is all I am pointing out. Other methods were available. I didn’t say it “isn’t there problem”, but with no shared IP address it would be less of a legal liability, potentially.
I cannot give a legal opinion, only a layman’s opinion.
Files can be shared without trace
Thats the MOST valid point. The parent can be a great techno-geek or a FBI head and still find no trace of file-sharing in the computer. In fact this is easy with ONLINE softwares (no need for hard disc storage) and the INCOGNITO mode so lavishly brought by Chrome and then FF. Files can be even shared during chat or Google wave and thereafter be removed without trace.
In this tech background can the legal heads of any country just summarize – what are the exact steps that a parent can do ? Problem is neither the judges or the law makers were exposed to the intricacies of the net when they were child and at “old age” half-learning is dangerous and produce half baked laws. If the thing is illegal crack down on the source – that is file sharing sites or methods.
You guys forget
She doesn’t need to be technically savvy to know what file sharing is. She could watch TV and hear about what it is, then later turn to the kid and say “I don’t want you doing any of that filesharing on the internets.”
My father plays games on his computer all the time, but he still doesn’t know the difference between server lag and capping out on bandwidth due to too much upload going on. He knew that taking away a cat5 cable from my brother would keep him from accessing the network, but not how easily replaced they are.
Do not confuse cursory knowledge on a subject with understanding. Otherwise, I’d be glad to represent you in court, because I watch Law and Order all the time.
Re: You guys forget
How about ‘Don’t use that IRC thingy because I heard they file share on it!’. They can pry my childhood memories of IRC from my cold dead braincells.
Re: You guys forget
“I don’t want you doing any of that filesharing on the internets.”
But that’s how the internet works, by computers sharing files.
Sexting?
There was a recent story of an underage girl charged with a child pornography offense for sending a naked photo of herself on her mobile phone. So according to the “parental responsibility” theory, her parents should be held responsible for her actions and charged with child pornography, sent to prison and banned from being around kids for life.
Re: Sexting?
This is a criminal matter, not a civil matter. You don’t get “sued” (by an individual or corporation) for child porn, you get prosecuted by the state. Parents are responsible for paying the obligations owed when they lose civil lawsuits against their minor children.
Re: Re: Sexting?
You don’t get “sued” (by an individual or corporation) for child porn, you get prosecuted by the state.
Yes, and if you’re responsible for it, you can be prosecuted for it.
Teach the judge
Find the home of the judge and wardrive it for any wireless signals. All methods of securing WIFI signals are crackable currently and people can then use the judges own network to make him a target of the industry. Once he sees how easy it is to target someone based solely on an IP address, we’ll see if he maintains his attitude of you should have known and stopped it.