Advocate General opinion on copyright, P2P networks and “copyright trolls”

January 21, 2021

Advocate General Szpunar has issued an opinion on various directives in the context of copyright infringement involving peer-to-peer networks in Mircom International Content Management & Consulting (MICM) Limited v Telenet BVBA (Case C 597/19). The case centred on so-called “copyright trolls” who threaten court action so they can collect the names and addresses of infringers to offer them an amicable settlement in return for the payment of a certain sum, usually without actually going ahead with court proceedings. In effect the AG said that “copyright trolls” may not receive information about users sharing copyright-protected content on peer-to-peer networks so that they can pursue them for damages for infringement and that EU law could not be used for abusive or fraudulent reasons. In addition, users sharing copyright-protected works on peer-to-peer networks, even if only short fragments, are carrying out acts of communication to the public.

The case arose in the context of licences for the communication to the public of films on peer-to-peer networks and internet file-sharing networks, which were held by the claimant Mircom. The licences contracts required Mircom to investigate acts of infringement of the film producers’ exclusive rights committed on the networks and, in its own name, to take legal action against the infringers to get compensation. It had to pass half of that compensation to the film producers.

Mircom sought an order in the Antwerp Companies Court that the ISP Telenet produce the identification data for its customers whose internet connections had been used to share on a peer-to-peer network using the BitTorrent protocol films from the claimant’s catalogue. The Belgian court referred the case to the CJEU for a preliminary ruling on the following questions:

  • Can the downloading of a file via a peer-to-peer network and the simultaneous provision for uploading of parts (‘pieces’) thereof (which may be very fragmentary as compared to the whole) (‘seeding’) be regarded as a communication to the public under Article 3(1) of the Copyright Directive 2001/29, even if the individual pieces as such are unusable?
  • If so, is there a de minimis threshold above which the seeding of those pieces would constitute a communication to the public?
  • Is the fact that seeding can take place automatically (as a result of the torrent client’s settings), and thus without the user’s knowledge, relevant?
  • Can a person who is the contractual holder of the copyright (or related rights), but does not themselves exploit those rights but merely claims damages from alleged infringers — and whose economic business model thus depends on the existence of piracy, not on combating it — enjoy the same rights as those conferred by Chapter II of the Enforcement Directive 2004/48 on authors or licence holders who do exploit copyright in the normal way?
  • How can the licence holder in that case have suffered ‘prejudice’ (under Article 13 of Directive 2004/48) as a result of the infringement?
  • Are the specific circumstances set out in questions 1 and 2 relevant when assessing the correct balance to be struck between the enforcement of intellectual property rights and the rights and freedoms safeguarded by the Charter on Human Rights, such as respect for private life and protection of personal data, particularly in the context of the assessment of proportionality?
  • Is, in all those circumstances, the systematic registration and general further processing of the IP-addresses of a ‘swarm’ of ‘seeders’ (by the licence holder, and by a third party on their behalf) legitimate under Article 6(1) of the GDPR?

Advocate General Szpunar delivered an opinion in the proceedings, saying: 

  • Article 3 of Directive 2001/29/EC must be interpreted as meaning that the act of making pieces of a file containing a protected work available for download within the context of a peer-to-peer network, even before the user concerned has themselves downloaded that file in its entirety, falls within the scope of the right to make works available to the public, in accordance with that article, and that user’s full knowledge of the facts is not decisive.
  • Article 4(b) of Directive 2004/48/EC must be interpreted as meaning that a body which, although it has acquired certain rights over protected works, does not exploit them, but merely claims damages from individuals who infringe those rights, does not have the status to benefit from the measures, procedures and remedies provided for in Chapter II of that Directive, to the extent that the national court finds that the acquisition of rights by that body was solely for the purpose of obtaining that status. Directive 2004/48 neither requires nor prevents the member state from attributing that status, in its national legislation, to an assignee of claims relating to infringements of intellectual property rights.
  • Articles 8(1) and 3(2) of Directive 2004/48 mean that the national court must refuse to grant entitlement to the right of information provided for in Article 8, in the light of the circumstances of the dispute, it finds that the request for information is unjustified or unlawful.
  • Article 6(1)(f) of the GDPR means that the recording of the IP addresses of persons whose internet connections have been used to share protected works on peer-to-peer networks constitutes the lawful processing of personal data where that recording is carried out in the pursuit of a legitimate interest of the controller or a third party, in particular to file a justified request for the disclosure of the names of the owners of the internet connections identified by the IP addresses under Article 8(1)(c) of Directive 2004/48. The query here would be whether Mircom had a “legitimate interest”.