German File-sharing Defence Undermined in CJEU Judgment

The Court of Justice of the European Union has ruled that the owner of an internet connection used for copyright infringements through file-sharing cannot be exonerated from liability simply by naming a family member who might have had access to that connection. There has to be an effective remedy for owner of the copyright.

In Case C-149/17 Bastei Lübbe GmbH & Co. KG v Michael Strotzer, a German publisher sought monetary compensation from Strotzer on account of its audio book being shared for downloading on a peer-to-peer internet exchange by means of an internet connection owned by Mr Strotzer.

Mr Strotzer denied having himself infringed copyright and maintained that his parents, who live in the same household, also had access to that connection. He did not provide further details as to when and how the internet was used by his parents. According to the Munich court in which the claim was brought, German case-law has the effect that, having regard to the fundamental right to protection of family life, Strotzer’s claim amounts to a defence which is sufficient under German law to exclude the owner of the internet connection from liability. This is because, while the owner of an internet connection by means of which copyright has been infringed is presumed to have committed that infringement (provided that the IP address in question has been correctly attributed to him) that presumption may be rebutted if other persons had access to that connection. Furthermore, if a family member of that owner had access to that connection, the owner may, having regard for the fundamental right to the protection of family life, escape liability simply by naming the family member without being required to provide further details as to when and how the internet was used by that family member

In that context, the Munich court asked the Court of Justice to interpret the provisions of EU law on the protection of intellectual property rights.

The Court answers that EU law precludes national legislation (such as that at issue, as interpreted by the relevant national courts) under which the owner of an internet connection used for copyright infringements through file-sharing cannot be held liable to pay damages if he can name at least one family member who might have had access to that connection, without providing further details as to when and how the internet was used by that family member.

The Court considers that a fair balance must be struck between the various fundamental rights, namely the right to an effective remedy and the right to intellectual property, on the one hand, and the right to respect for private and family life, on the other. There is no such fair balance where almost absolute protection is guaranteed for the family members of the owner of an internet connection, through which copyright infringements were committed by means of file-sharing.

If a national court before which a tortious action has been brought cannot require, on application of the claimant, that it be provided with evidence relating to the opposing party’s family members, proving the alleged copyright infringement and who was responsible for it are rendered impossible, which, consequently, seriously infringes the fundamental rights to an effective remedy and to intellectual property, as enjoyed by the copyright holder.

That would not, however, be the case if, for the purposes of preventing what was regarded as an unacceptable interference with family life, right-holders had at their disposal another effective remedy, for example, by which, in such a situation, the owner of the internet connection in question could, consequently, be held liable in tort.

The Munich court must now determine whether there are any other means, procedures or remedies which would allow the competent judicial authorities to order that information necessary for proving copyright infringement and who infringed it be provided.


Published: 2018-10-18T09:30:00

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