Revealing IP addresses, YouTube and the EU approach

post-letter-2828146_960_720The Advocate General of the European Court H. SAUGMANDSGAARD ØE issued its opinion on case C‑264/19 Constantin Film Verleih GmbH v YouTube LLC.

This dispute regards the main question whether the IP address of a copyright infringer is the same as the meaning of his/her actual address.

The case background is:

Constantin Film Verleih is a film distributor established in Germany.

YouTube, which is owned by Google and established in the United States, operates the internet platform with the same name.

In Germany, Constantin Film Verleih has exclusive exploitation rights in respect of the cinematographic works Parker and Scary Movie 5.

Between the months of June 2013 and September 2014, those two works were posted online on the ‘YouTube’ platform without Constantin Film Verleih’s consent. On 29 June 2013, the cinematographic work Parker was uploaded in its full-length version and in German under the username ‘N1’. It was viewed more than 45 000 times before it was blocked on 14 August 2013. During the month of September 2013, the cinematographic work Scary Movie 5 was uploaded in its full-length version under the username ‘N2’. It was viewed more than 6 000 times before it was blocked on 29 October 2013. On 10 September 2014, another copy of the second work was uploaded under the username ‘N3’. It was viewed more than 4 700 times before it was blocked on 21 September 2014.

Constantin Film Verleih demanded that YouTube and Google provide it with a set of information for each of the users who had uploaded those works.

The referring court found that the conditions for the right to information were satisfied. Consequently, the scope of the dispute in the main proceedings is limited to the content of the information that YouTube and/or Google must provide to Constantin Film Verleih. More specifically, the dispute concerns the following information:

–        the user’s email address,

–        the user’s telephone number,

–        the IP address used by the user to upload the files at issue, together with the precise point in time at which such uploading took place, and

–        the IP address last used by the user to access his or her Google/YouTube account, together with the precise point in time at which that access took place.

Ruling at first instance, the Regional Court, Frankfurt am Main, Germany rejected Constantin Film Verleih’s request that such information be provided.

On appeal, the Higher Regional Court, Frankfurt am Main, Germany ordered YouTube and Google to provide the email addresses of the users concerned, rejecting Constantin Film Verleih’s request as to the remainder.

By its appeal on a point of law, brought before the Federal Court of Justice, Constantin Film Verleih requested that YouTube and Google be ordered to provide it with all of the abovementioned information, including users’ telephone numbers and IP addresses. By their own appeal on a point of law, YouTube and Google requested that Constantin Film Verleih’s request be rejected in its entirety, including in so far as it concerns users’ email addresses.

Taking the view that the outcome of the two appeals on a point of law depended on the interpretation of the concept of ‘addresses’ contained in Article 8(2)(a) of Directive 2004/48, the Federal Court of Justice decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)  Do the addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers, mentioned in Article 8(2)(a) of Directive [2004/48] and covered, as appropriate, by the information referred to in Article 8(1) of [that] directive, also include

(a) the email addresses of service users and/or

(b) the telephone numbers of service users and/or

(c) the IP addresses used by service users to upload infringing files, together with the precise point in time at which such uploading took place?

(2)  If the answer to Question 1(c) is in the affirmative:

Does the information to be provided under Article 8(2)(a) of Directive [2004/48] also cover the IP address that a user, who has previously uploaded infringing files, last used to access his or her Google/YouTube user account, together with the precise point in time at which access took place, irrespective of whether any infringement [of intellectual property rights] was committed when that account was last accessed?’

The Advocate’s opinion:

Article 8(2)(a) 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 meaning that the concept of ‘names and addresses’ set out in that provision does not cover, in respect of a user who has uploaded files which infringe intellectual property rights, the email address, the telephone number, the IP address used to upload those files or the IP address used when the user’s account was last accessed.

Accordingly, the Member States are not obliged, under that provision, to provide for the possibility, for the competent judicial authorities, to order that that information be provided in the context of proceedings concerning an infringement of an intellectual property right

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