Shift the blame for copyright infringement to your parents – an EU Court decision

pirate-2129571_960_720The European Court has ruled in case C‑149/17,Bastei Lübbe GmbH & Co. KG v Michael Strotzer, which concerns the following:

Bastei Lübbe is the holder, as a phonogram producer, of the copyright and related rights in the audio version of a book.

Mr Strotzer is the owner of an internet connection through which, on 8 May 2010, that audio book was shared, for the purpose of downloading, with an unlimited number of users of a peer-to-peer internet exchange. An expert correctly attributed the IP address in question to Mr Strotzer.

By letter of 28 October 2010, Bastei Lübbe warned Mr Strotzer to cease and desist the infringement of copyright which had occurred. That warning notice was unsuccessful and Bastei Lübbe brought an action before the Amtsgericht München (Local Court, Munich, Germany) against Mr Strotzer as the owner of the IP address in question, seeking damages.

However, Mr Strotzer denies having himself infringed copyright and maintains that his connection was sufficiently secure. In addition, he asserts that his parents, who live in the same household, also had access to that connection but that to his knowledge they did not have the work in question on their computer, were not aware of the existence of the work and did not use the online exchange software. In addition, Mr Strotzer’s computer was switched off at the time when the infringement in question was committed.

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.

Bastei Lübbe appealed against the decision of the Amtsgericht München (Local Court, Munich) before the Landgericht München I (Regional Court, Munich I, Germany).

That court is inclined to hold Mr Strotzer liable in that it does not follow from his explanations that a third party used the internet connection at the time of the infringement. It considers that Mr Strotzer is therefore seriously likely to have committed the copyright infringement.

That court nevertheless considers itself to be compelled to apply Paragraph 97 of the Law on copyright and related rights, as amended by the Law of 1 October 2013, as interpreted by the Bundesgerichtshof (Federal Court of Justice, Germany), which in its view might preclude the defendant from being held liable.

In fact, according to the case-law of the Bundesgerichtshof (Federal Court of Justice), as interpreted by the referring court, it is for the applicant to allege and prove the infringement of copyright. The Bundesgerichtshof (Federal Court of Justice) considers, moreover, that the owner of an internet connection is presumed to have committed such an infringement provided that no other person was able to use the internet connection at the time of the infringement. However, 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 that case, the case-law of the Bundesgerichtshof (Federal Court of Justice) nonetheless places on the owner of the internet connection a secondary burden to present the facts. The owner discharges that secondary burden to the requisite standard by explaining that other persons, whose identity he discloses, where appropriate, had independent access to his internet connection and are therefore capable of having committed the alleged infringement of copyright. Although a family member of the owner of the internet connection had access to that connection, the owner of that connection is not, however, required to provide further details relating to the time and the nature of the use of that connection, having regard to the protection of marriage and family guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the corresponding provisions of the German Basic Law.

In those circumstances, the Landgericht München I (Regional Court, Munich I) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Should Article 8(1) and (2), in conjunction with Article 3(1), of Directive 2001/29/EC be interpreted as meaning that “effective and dissuasive sanctions” for infringements of the right to make works available to the public are still provided for even when the owner of an internet connection used for copyright infringements through file-sharing is excluded from liability to pay damages if the owner of that internet connection can name at least one family member who, besides him or her, might have had access to that internet connection, without providing further details, established through appropriate investigations, as to when and how the internet was used by that family member?

2. Should Article 3(2) of Directive 2004/48/EC be interpreted as meaning that “effective” measures for the enforcement of intellectual property rights are still provided for even when the owner of an internet connection used for copyright infringements through file-sharing is excluded from liability to pay damages if the owner of that internet connection can name at least one family member who, besides him or her, might have had access to that internet connection, without providing further details, established through appropriate investigations, as to when and how the internet was used by that family member?’

The Court ‘s decision:

Article 8(1) and (2) of Directive 2001/29/EC, of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, read in conjunction with Article 3(1) thereof, and Article 3(2) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights 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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