THE CJEU INTERPRETS A CASE ABOUT A COPYRIGHT INFRINGEMENT USING A SHARED INTERNET CONNECTION

Return to News — Sunday 02 December — 2018 byPedro Gómez Luna
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The Court of Justice of the European Union (hereinafter CJEU) has decided, in its Judgement of 18 october 2018 (C-149/2017, Bastei Lübbe GmbH & Co. KG vs Michael Strotzer) on the possibility that the owner of an internet connection, once a copyright infringement has been committed, might be exempt from liability, alleging that another member of the family was the responsible of the said infringement.

The facts that give rise to the preliminary ruling analysed in this decision, have their origin in a claim filed by Bastei Lübbe, which is the owner of a publisher company which edit an audio-book. In this claim, the plaintiff requested a compensation for the damages caused by Michael Strotzer because the defendant was the owner of an internet connection through which, the audio-book was shared, for the purpose of downloading, with an unlimited number of users of a peer-to-peer internet exchange.

The Amtsgericht München (Local Court, Munich) dismissed Bastei Lübbe’s action for damages on the ground that Mr Strotzer could not be held liable for the infringement of copyright in question, because he had stated that his parents could also have committed the infringement in question. After that, Bastei Lübbe appealed against the decision of the Amtsgericht München (Local Court, Munich) before the Landgericht München I (Regional Court, Munich I, Germany).

This Regional Court considered that Mr Strotzer is therefore seriously likely to have committed the copyright infringement. However, according to the case law of the Federal Court of Justice, if the internet connection was not sufficiently secure or was knowingly made available to other persons, then the owner of that connection is not presumed to have committed the infringement.

In this regard, 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. In those circumstances, the Landgericht München I (Regional Court, Munich I) decided to stay proceedings and refer to the CJEU the preliminary ruling related to the possibility of providing appropriate sanctions and remedies to the infringers.

The CJEU states that a fair balance must be found between the right to an effective judicial protection, the right of intellectual property and the right to respect for private and family life.

The CJEU considers that by guaranteeing an almost absolute protection for the family members of the owner of an internet connection, through which copyright infringements were committed by means of file-sharing, the national legislation at issue in the main proceedings cannot, contrary to the requirements set by Article 8.1 of Directive 2001/29, be considered to be sufficiently effective and capable of ultimately leading to effective and dissuasive sanctions against the perpetrator of that copyright infringement. Furthermore, the CJEU states that German regulation is not capable of ensuring the enforcement of intellectual property rights required by Article 3.1 and Article 3.2 of Directive 2004/48.

To sum up, the CJEU states that these directives "must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which, as interpreted by the relevant national courts, 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".

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