Who Should Pay When an Au Pair Downloads Movies, Illegally, by Mistake?

by cv harquail on October 4, 2010

We all have a sense of what kinds of issues regularly present host parents & au pairs with relationships challenges — food, cars, late nights being chief among these. I’m becoming aware of a new category of challenges, centering on ‘Who pays for a mistake?’

We’ve had mistakes related to car damage, lost cell phones, hair-dye stained walls, and more… and here comes a mistake related to apparently illegal downloading.

201010041048.jpgBehind each of these ‘mistake’ challenges is the question of “Who was at fault?”:

  • Should the host parents have warned the au pair? Should they have had something in their handbook?
  • Could an agency have screened or trained for this issue to prevent it from happening?
  • Should the au pair have inquired before s/he did something? Or, been quicker to make changes?
  • Or, all of the above?

Here’s the specific situation:

I am an au pair from Düsseldorf, Germany. I live in my guest-family since December 2009 and on 29 October I go back home to Russia.

One story has happened to me recently and I don’t know with who can I consult. I have/had internet in my guest-family. I have downloaded movies there. I had no idea that in Germany it is forbidden to download movies and my guest-family did not warn me. Then we received a warning from Lawyer Office where stands that my guest-parents should pay for it.

My guest-parents have consulted with their lawyer and they have decided that they do not pay me money for September and last month October. Furthermore, they do not tell me what’s going on with this case.

I would like to ask You, what can I do? Do I have any rights? Can the guest-family exact such a fine from me? Could you please advise me something, because I do not know how should I behave.
Of course, if I knew that in Germany downloading is forbidden, I would have never done it.

I had a similar situation with our very first au pair, who racked up almost $900 in phone charges to a Psychic hotline. Yes, almost $900. To a Physic Hotline.

In one of my best shows of indignation and consumer advocacy, i wrote several scathing letters to the phone company and hotline company, explaining that she was under 18 (not true technically, but true socially), that she did not understand English, and thus that she couldn’t have entered into a valid contract with them. I also harangued them with complaints about their pricing structure: $1 for the first mine, $10 for every subsequent minute, and a policy of scheduling the next call at the end of the current one. it was a system designed for exploitation, that worked until I threatened them. We ended up paying nothing beyond the first $1.

201010041045.jpgin this Au Pair in Germany’s situation, at the very least her host parents need to discuss with her how to pay for the fines. They shouldn’t just take it out of her already earned salary– that’s punishment. Also, it might really put the au pair in a bad situation if she was expecting to have that money and needed it to return home.

Rather, they should arrange a payback schedule where some portion comes out of each weeks pay, that they au pair can plan for and agrees to. This would serve as compensation, not punishment, for the mistake.

Unfortunately, they are all running out of time– and I bet the Host Parents are thinking that they don’t want to be left holding the bill.

What do you all think this au pair can / should do?

See Also:

Settling Accounts — *Before* she departs
First Day, First Problem, First Opportunity: The $48 phone call

When fault is contested, who pays for damage to the car?
Who pays for what?

Images: karate kid | TK watching movie on…from GoodNCrazy
Untitled from Ken Wingerden

{ 31 comments }

Taking a Computer Lunch October 4, 2010 at 12:14 pm

Wow! I would guess as a host family in Germany, a couple of lines about illegally downloading movies would have to go into the handbook after that. I would say that the HF has a legal case for “innocent party” as you did, CV, with the psychic hotline. (Of course I’m not a lawyer in Germany, so I don’t know if how much they could stand up against the allegations.)

I tried to make it clear to my Chinese AP, that while downloading music and videos was tolerated in her country, that it was illegal here in the United States, and that if caught, we would expect her to pay. I did my best to make it clear that creators depend on copyright fees to make a living. I’m sure she continued doing what she had always done, but she had been warned.

When our APs hit their first “wall” of bills, whether it be sticker-shock over the price of textbooks, the phone bill from too much texting, paying income taxes, or a doctor’s visit, we do our best to over them a structured payment plan and absorb the impact of the cost. And then we remind them of the lecture that our LCC gives them in the initial home visit – that they really ought to be saving $100 a week so that they have plenty of money when incidents arise. We don’t offer to do it a second time, because our function is not to act like a bank for a frivolous lifestyle, when we’re having to pinch pennies ourselves.

Anon October 4, 2010 at 12:17 pm

I am sorry to say this, but knowing first hand how Russians feel about copyright laws and illegal downloading, I am very hard pressed to view this as an innocent mistake by a confused au pair. In general, Russians as well aware that illegal downloading is not common place in most places outside Russia and other former USSR countries. Although it is possible that it was a mistake, chances are it was done with knowledge and hope that nobody will notice or follow the letter of the law.

Dorsi October 4, 2010 at 1:33 pm

I will say my German AP downloaded tons of TV (and probably movies and music — we had a don’t ask, don’t tell situation) while she was here. I think this is a generational thing more than a cultural difference. However, my AP clearly knew what she was doing was wrong (and was sheepish about it). Had she been caught, I would not have picked up the costs and would have required her to deal with the officials (though I would have been happy to help her). Much like our attitude on taxes — here is the info, we will do the form with you, you may decide if/how you pay.

Aupairgal October 4, 2010 at 1:37 pm

Do American Aupairs have to pay taxes?

MTR October 4, 2010 at 6:43 pm

In theory, yes.

CS Nanny October 4, 2010 at 10:27 pm

Not necessarily. I didn’t have to. Contact an accountant and ask them for sure.

hOstCDmom October 5, 2010 at 8:14 am

I believe you are required by law (IRS regulations) to file a return, EVEN IF you don’t owe any money. The obligation to file stems from having earned income. Whether you owe money (taxes) is a fact specific question related in large part to when the AP arrived, and therefore how much money she earned in a given tax year.

Aupairgal October 4, 2010 at 1:20 pm

Well, because the pay is actually concidered pocket money (Taschengeld) the host parents should not be able to withold it. I will ask my boyfriend about some of the laws regarding downloading as he is very up-to-date on that topic and is a German. You can also contact your consulate (Konsulat) as they should have lawyers for their citizens, who are fluent in both languages.
While I want to sympathize with you/this Aupair, I find it also hard to believe it to be an innocent mistake. In Germany, there aren’t sites where you can’t just simply download films illegally by mistake. One would have to either use a file sharing program or use a program that captures the link on streaming sites so that you could download said film(requires more computer knowledge than the average person).

Mom23 October 4, 2010 at 1:35 pm

Computer use can be a tough area in the host family/au pair relationship. My DH is a techie. For the main computer in the kitchen, my husband has a very nice screen set up. The “big” computer is the one in demand. My kids always want to use it, and even when au pairs have their own laptops, they typically like to use the big one. However, after a couple of au pairs began downloading stuff, it got very slow (and he felt that there might be some danger of illegal downloading). My DH now has it set up so that nothing can be downloaded unless you key in a password. It is not a sophisticated system and probably could be bypassed, but I think that it is important to have some minimal amount of control on one’s computer.

In the instant situation, I think that if the au pair knew about downloading she should still have to pay the charges, but perhaps the host parents could work out a payment schedule. It is kind of like going 35 in a 25 MPH zone and getting a ticket. Just because you didn’t know doesn’t mean that you shouldn’t be responsible for the charges.

PA AP mom October 4, 2010 at 2:10 pm

Remember the whole Napster scandal here in the states? I downloaded music from there until I saw on the news that it was “illegal” and I stopped. Some friends of mine didn’t and they got letters saying they owed large sums of money…up to $3000.

I think it’s more a young people thing than a cultural one. In this day and age when everyone has grown up with computers, I find it harder to believe that one wouldn’t know that downloading movies is illegal.

I would definitely be adding it to my host family handbook. That’s for sure.

Noga October 4, 2010 at 2:26 pm

My impression is that the aupair doesn’t tell us the complete story. I don’t understand how it should be possible to surf in the internet over such a long period without becoming aware that downloading in Germany is forbidden. She has been in her host family for ten month. There are so many “pop up’s” telling about this. We don’t know how much the hostfamily has to pay. Illegal downloads are extremely expensive in Germany and thus I suppose that the host family has to pay much more than the amount which the aupair would receive for September and October. Only to give you an impression: The download of only O-N-E film can cost you between 3000 and 10 000 Euro. In case of filesharing you may be imprisoned up to six month.

A legal principle of German law has become a everyday phrase: “Ignorance doesn’t protect you to bear the damage”.

Aupairgal October 4, 2010 at 4:21 pm

I have thought more about this post and I really have to agree with Noga. Although you cannot be imprisoned because of that. If your only punishment is two months without pay and the parents are (like Noga suggested) footing the rest of the bill which is probably a lot larger than two months pay (520 Euros at least) then I would suck it up and be happy with it.
On that note, I think in general most aupairs should realize that this is the case(ignorance does not protect you from the law) in most countries and that you are now subject to the laws of that country in which you are aupairing. One should question many things that are normal in the home country as to whether they are legal in the “guest” country. Not to mention that punishments are different and one is also subject to those as well (yes that goes for Americans as well).

Anna October 4, 2010 at 3:27 pm

I think the au pair is not telling the whole truth. In Russia people are well aware what is pirated and what is not; pirated things just cost much less or are free. The copyright law is not enforced there so much, and people break it and don’t view it as so morally wrong.

I grew up in the former USSR, and I had a Russian au pair recenly, and I know that it is very unlikely the naivette in the au pair’s letter is real – she is trying her best to get out of a sticky situation with the least cost to her. But in my opinion, she was doing it knowing it was wrong, but counting on not getting caught – like almost nobody gets caught or penalized for doing the same thing in Russia.

It was in my handbook that I don’t allow illegal downloads on my computer, and I have to permit and pre-approve any software installs. I go over the handbook with every new au pair. My Russian au pair did it anyway, movies and software – I found the computer full of it after she left. She knew it was illegal for sure – I told her.

aria October 4, 2010 at 3:39 pm

I agree that nowadays you’d have to live under a rock to not know downloading films for free is illegal, and Miss is probably not telling the whole truth.

HOWEVER.

I do think the HF should absolutely include her in whatever kind of chats they’re having with their lawyer, especially if they’ve all decided to dock her pay two months. I’m not saying the docking her pay is out of hand- I think it’s fine, she’s the one who downloaded the illegal films, but I don’t think it’s right to keep her out of the loop like that.

Anna October 4, 2010 at 3:41 pm

Agree.

Aupairgal October 4, 2010 at 4:41 pm

Allrighty, I did some research for Germany in regards to filesharing and its legality. For some reason this blog thread really intrigues me.
You may NOT be imprisoned for this, even though the content industry tries to make you think that. File sharing is NOT concidered a crime, but rather a “Ordnungswirdrigkeit” (I supposed a misdemeanor in English). Another example of Ornungswirdrigkeit is illegal parking. Unfortunetly the content industry is trying to make money by sueing people. What probably happened in this case is the lawyer offered the family/aupair the standard 1000€ not to go to court….which is a good thing. Noga is right that ignorance does not protect you from the law….”Unwissenheit schüzt vor Strafe nicht”. My final advice to the aupair or anyone in this position is to be happy that all you are paying is 2 months pay and your host parents are settling the rest. I would NOT try to fight this. They could have just left her with the entire bill and kept paying her like normal. On top of that they could have left her to deal with the lawyer on her own. It seems to me that they took the “Member of the family thing” seriously which is why they, in my opinion, are being helpful.

Aupairgal October 4, 2010 at 5:32 pm

Ooops, *Ordnungswidrigkeit*.

hOstCDmom October 4, 2010 at 5:09 pm

I work in this field, in both the USA and in Central Europe (including Germany, Russia). Illegal downloads of movies are a violation of copyright law in all EU markets and in the USA …and Russia according to the letter of the law (although not oft enforced) and, fwiw almost everywhere else in the world with notable exceptions, like China. I know this first hand because I work with the rights holders of software, films, and music and enforce their copyrights. In the USA this is a violation of Federal Law (copyright law is federal in the USA). And yes, you could be imprisoned for criminal copyright infringement. You can also be subject to civil litigation and civil fines. But perhaps more relevant is that you can be subject to HUGE statutory criminal fines. IT DOES NOT MATTER IF YOU “DIDN’T KNOW” IT WAS ILLEGAL. And this doesn’t apply just to illegal downloads – same rules if you “borrow” a software CD from your friend and install the program(s) on you computer. This = a violation of copyright law = illegal = possible civil and criminal penalties.

HP should be aware that if they are sharing their Internet with their AP they can be liable for illegal downloads conducted over their IP address/Internet connection. Yes, you *might* be able to show that your AP did it and she is ultimately responsible…tougher if she did it on your family computer rather than her own personal one….but frankly, most people don’t go to court over this and never get to the point of “proving” anything. The end up settling with the right holder(s) of the music/film/software…and for a LOT MORE MONEY than they would have paid for a legit copy in the first place.

As a HP I have an entire 2 page seciton of my handbook on computer and Internet use and make explicit that the AP may not use my internet connection, EVEN WITH HER OWN COMPUTER, to download illegal music/film/software etc. I also have technical measures in place to make it difficult (but not impossible…but I haven’t had a hacker AP yet :)) to dowload anything (including to her personal computer) on my network. I tell them that if they do it Internet will be cut off. No second chances. Given my work, I have no leeway on this point with an AP. I’m one of the people who send such letters to folks for illegal downloads — I’m not going to send one to myself! ;-)

I would advise all HP to address this issue with their AP — like many other situations with AP, this is a situation where prevention is a LOT LESS PAINFUL than dealing with it after the fact.

MTR October 4, 2010 at 7:06 pm

Hi hOstCDmom,

Could you please share, if you can, what is the technical measure that you have that privents downloads.

We have a note in the handbook about illegality of downloads and copyright laws, but as you can imagine, that gets ignored. We had a really old laptop that we kept for AP use, and my current au pair killed it, partially because she downloaded tons of music, videos, and movies on it.

We will need to get a new cheap laptop for our next au pair and I want to make sure that it will last for a while. Also, I do feel uneasy knowing that illegal things are getting downloaded via my internet connection. Mostly, I am concerned for the off change of what happened in the orignal post, getting busted for something I or my husband did not do and then have a financial and legal mess to deal with.

Taking a Computer Lunch October 4, 2010 at 8:11 pm

It is possible to kill a computer using a legitimate file-sharing site. Music downloads take up so much more space than text! I had one AP who filled a lot of my hard drive with music – didn’t matter if it was legitimately gained or not – it was a space user.

I work for the same agency that enforces copyright, and try to stay above the law. However, my last 3 APs have had their own laptops. I’d be interested, too, in how one blocks illegal software from entering the house.

hOstCDmom October 4, 2010 at 8:58 pm

Hi – I block it direct at the source on my WiFi router. To keep it simple for those of you who aren’t techies, your internet likely comes into your home via a cable — either DSL via phone cable, your “Cable” line, or your fiber optic cable with something like FIOS. THis connects to a modem, then your modem might connect to your WiFi router if you have a home WiFi network. (you might also connect directly from cable to your PC, esp. if you only have one PC w/ Internet access, and then you’d want to adjust your firewall settings and/or install some internet management software.)

I have a “top of the line” router (Cisco E3000 — and no, I don’t work for Cisco (!), just chose this because of the features, esp. the guest accout that I’m about to explain ) that has my home network + a “guest account” on my home network. Each have different keys (i.e. the password) and separate encryption. The guest account is a actually a virtual network of my home network. Anyone logged into the guest account is NOT on my family network, although both are managed by the same WiFi router and we have only one cable internet account, one internet line etc. This means I can cut off a guest’s access without shutting down my family network or changing the pw on the family network on all our PCs (we have about 10 computers in my home — large family and I’m a bit of a techie — so changing the pw and auto login access from each PC is a pain.) This is a nice feature if a re-match goes sour. Also nice if you have friends over who want to login to your network but don’t want them on your secure network (which I don’t).

The firmware on the router (like software but “firmly” on the router (router firmware can be changed, but routers come with preinstalled firmware) has the option to have parental controls on any user, including those on the guest account, (GREAT for your kids!) re what hours the Internet can be used, what kind of Internet sites can be visited (either content filtering OR only certain sites can be accessed etc.), AND the ability to block downloads for any particular user or users (again, great for kids as well as au pairs!). This is kind of like net-nanny software, but it is at a higher level — it is one step removed from the PC. I chose this option bc our APs almost always have their own laptop with them and I can’t insist on installing net-nanny software on their laptop! So I go direct to the source, so to speak.

For our APs on the guest account I keep it simple and block all downloads. Yes, this limits them….but I’m the IT master in our home and I offer free, but slightly curtailed, Internet service to our APs. Keeps it black and white, and for us largely avoids the grey areas.

Like all such technical solutions it only gets you so far — savvy folks can get around such techie solutions if motivated enough — but it makes it “not easy” for an AP who guilessly (or with “willful ignorance”) wants to download unlicensed software, music, films.

Hope this is helpful!

Should be working October 5, 2010 at 2:24 am

Extremely helpful!

Busy Mom October 5, 2010 at 3:09 pm

hOstCDmom, Thanks for all of the detail. We have a paragraph about not downloading illegal material to our computers, but the APs have come with or bought their own laptops, and you answered the question about downloads via our IP address.

I have worked for and consult to media companies, so it would be professionally embarassing for someone in my household to be caught downloading illegally.

D October 5, 2010 at 10:50 am

I have in my guidebook about not downloading illegal material. Likewise, I make mention of NO INTERNET DATING either. In this world of technology, we can attempt to cross all the T’s and dot the I’s and addressing it up front on arrival. (if thats even humanly possible, I don’t think it is really, but you can try)

But, as we know it is impossible for host families and to convey, read, or talk about EVERYTHING to their au pair before it happens.

With that said……Honestly…..I don’t believe any young person in the world is that clueless to realize downloading movies isn’t at least “questionable”. Saying her host parents didn’t let her know….that honestly wasn’t their responsiblity. It is an au pair’s responsibility to know the laws where they live. No different than they need to know the laws of the driving rules in the area. Knowing the law, is merely a part of being a good citizen in the country you are living.

This young lady should be very humble to her situation as she just put her host family in a rough situation with an attorney. Yes, you have rights. But given you only have to sacrifice two months worth of pay is not punishment. You broke the law and in this world you should be grateful to your host family that they are fixing it for you. Chalk it up as a good lesson learned.

Yes the guest account on the wireless router is wise. A guest account can secure your network.

T October 10, 2010 at 8:39 pm

Why do you prohibit Internet Dating? What’s wrong with that? Nowadays people expanded the internet usage greatly: we shop, apply for a job, pay bills etc online. And can also find somebody special online. I found my husband on the internet dating website and now happily married. Why can’t au pair try it?

NewAPMama October 10, 2010 at 9:35 pm

I was wondering that same thing. There is nothing wrong with internet dating as long as you are smart about it. I’d personally rather my AP meet someone online (as long as she met them in public first, etc.) than at a bar.

Anonamomma in Europe October 11, 2010 at 12:08 pm

I will definitely be including something like NO INTERNET DATING in my next handbook and perhaps an only a friend from your past i.e. childhood can visit.

Just sharing with all of you, I am pretty sure my AP recently invited a “friend” to visit who came to stay with us for a couple of days. I have convinced myself that she met this person on the internet and that this person was not a real friend but a “chat” friend. She was off duty for this time so childcare/security was not really an issue but both her and her “friend” were completely aloof with one another and did not even seem to like one another and they spent so much time apart. It was so obvious. They did just not behave like people with a shared past and there did not seem to be any connection between them at all. They did not laugh, smile at one another, tell jokes about one another, you know how real friends behave well they did not behave that way. They behaved like two people who thought they knew each other only to realise that the person was not who they expected them o be. I hope this is clear to everyone.

Right now I am in two minds as to whether or not to confront her about the situation. I have spoken with HD about how I am feeling and he said that no good will come of confronting her now but from now on AP must ask permission from him for “friends” to stay and he will interrogate her about the proposed “friend” (and yes we are friends on Facebook so I plan to do a little investigating of my own next time but I am really sorry that it has come to that)

And in reality I feel that it was my fault for being too trusting, I am but not any more. Shame though because I really did trust AP totally before this and now I really feel that that trust is gone. But she is only here for a little bit longer and to date has been very consistent in all other aspects so I am taking it that this might have been a momentary “bleep” in her judgment. It will however have serious consequences for the rest of her stay when it comes to having “friends” to visit (even really ones) will be curtailed.

Melissa October 11, 2010 at 9:24 pm

Unless her time left is REALLY brief, I would chat with her about it. That way, you won’t have to worry about it coming up again, hopefully, rather than having to feel like you are ‘onguard’ or have to investigate any new visitor requests, and you’ll probably feel better that you did. I wouldn’t be confrontational, but just share what the situation looked like from your perspective and how surprised you were. If you trusted her before this situation occurred, maybe having a conversation and hearing her side of it will help you regain some of that trust back (maybe she’ll admit to a very naive mistake and that she felt bad/awkward about ‘confessing’ to you??).

We had a situation in which our au pair invited another AP to go on a weekend trip with us. One night while our AP was working while HD and I had an evening out, the other AP went out with her boyfriend, leaving our AP alone, and didn’t return back until 3am. To top it off, the community where we stayed was gated, so the other AP had to hop the fence and walk two blocks in her ‘date attire’ to our home in the middle of the night. Even though this was not our AP’s fault and reflected the poor and inconsiderate judgement of her friend, rather than her, I did share my opinion on it with our AP. I just wanted her to know where we stood on that kind of behavior and hoped it may help our AP avoid future situations like that with her friends, if she could help it. And, I felt better that I talked with her about it and no longer had to hold onto the annoyance factor.

JBLV October 11, 2010 at 7:50 pm

We have a rule in our family handbook that states that we do not allow male visitors or female visitors who are not also AP’s, or who are not immediate family. We can then relax this rule if we learn she has a long-term boyfriend/girlfriend, and we feel we can trust this person by extension. This allows us to avoid the one-night-stand/internet dating situation where the AP brings a stranger into our home.

JBLV October 11, 2010 at 7:51 pm

Oops, the above comment was meant to reply to “Anonamomma in Europe.”

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