YouTube won a dispute about what is a user address in the EU

The European Court has ruled in the case C‑264/19 Constantin Film Verleih GmbH срещу YouTube LLC, which has the following background:

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

In 2013 and 2014, those works were uploaded onto the website, a platform operated by YouTube, which enables users to publish, watch and share videos (‘the YouTube platform’). Those works have therefore been viewed several tens of thousands of times.

Constantin Film Verleih demands that YouTube and Google, the latter being the parent company of the former, provide it with a set of information relating to each of the users who have uploaded those works (‘the users in question’).

The referring court notes, in that regard, that, in order to upload videos onto the YouTube platform, users must first of all register with Google by means of a user account, the opening of that account requiring only that those users provide a name, email address and date of birth. Those data are not usually verified and the user’s postal address is not requested. However, in order to be able to post onto the YouTube platform videos lasting more than 15 minutes, the user must provide a mobile telephone number to enable him or her to receive an activation code, which is necessary in order to post. Furthermore, according to YouTube and Google’s joint terms of service and privacy policies, users of the YouTube platform consent to server logs, including the IP address, date and time of use as well as individual requests, being stored and to those data being used by participating undertakings.

After the parties to the dispute in main proceedings unanimously stated that the dispute at first instance concerning the names and postal addresses of the users in question had been formally settled, Constantin Film Verleih, which obtained only fictitious user names, requested that YouTube and Google be ordered to provide it with additional information.

That additional information concerns, first, the email addresses and mobile telephone numbers as well as the IP addresses used by the users in question to upload the files, together with the precise point in time at which such uploading took place, indicating the date and time, including minutes, seconds and time zones, that is to say, the time at which the file in question was uploaded, and, second, the IP address last used by those users to access their Google account in order to access the YouTube platform, together with the precise point in time at which access was obtained, indicating the date and time, including minutes, seconds and time zones, that is to say, the time at which the file was accessed.

By its judgment of 3 May 2016, the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany) dismissed Constantin Film Verleih’s request. However, on appeal by the latter, by judgment of 22 August 2018, the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany) partially granted Constantin Film Verleih’s request and ordered YouTube and Google to provide it with the email addresses of the users in question, but dismissed the appeal as to the remainder.

By its appeal on a point of law, brought before the referring court, the Bundesgerichtshof (Federal Court of Justice, Germany), Constantin Film Verleih maintains its claims seeking an order requiring YouTube and Google to provide it with the mobile telephone numbers and IP addresses of the users in question. Furthermore, by their own appeal on a point of law, YouTube and Google claim that Constantin Film Verleih’s request should be dismissed in its entirety, including in relation to disclosure of the email addresses of the users in question.

The referring court considers that the outcome of those two appeals on a point of law depends on the interpretation of Article 8(2)(a) of Directive 2004/48 and, in particular, on the answer to the question whether the additional information requested by Constantin Film Verleih is covered by the term ‘addresses’ within the meaning of that provision.

In those circumstances, the Bundesgerichtshof (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 Directive [2004/48], 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 Court’s decision:

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 term ‘addresses’ contained in that provision does not cover, in respect of a user who has uploaded files which infringe an intellectual property right, his or her email address, telephone number and IP address used to upload those files or the IP address used when the user’s account was last accessed.