Court of Justice of European Union finds that Member States cannot exclude liability for copyright infringement through file sharing where a family member had access to the same internet connection

The claimant, the German publisher Bastei Lübbe, issued proceedings in the Germany against the defendant, Michael Strotzer, for copyright infringement in relation to the sharing online (with an unlimited number of users of a peer-to-peer internet exchange) of an audiobook (in which it owned the copyright) by Mr Strotzer via an internet connection owned by him.

Mr Strotzer denied infringement, arguing that his parents, who lived in the same household, also had access to the internet connection concerned. But he also said that to his knowledge they did not have the audiobook in question on their computer, were not aware of the existence of the work and did not use the online exchange software.

The German court had held that German case law appeared to provide that simply by naming the family member who had access to the internet connection concerned, and who therefore was capable of having committed the alleged infringement, a defendant could escape liability for copyright infringement.  The German court asked the CJEU to clarify whether this was lawful under the Copyright Directive (2001/29/EC) and under the IP Enforcement Directive (2004/48/EC).

Citing its 2015 Coty decision (Coty Germany, C‑580/13, EU:C:2015:485), the CJEU held that a fair balance had to be struck between the various fundamental rights protected by the EU legal order, i.e. the right to an effective remedy and the right to intellectual property on the one hand (Directive 2004/48 and Directive 2001/29 respectively), and the right to respect for private and family life on the other. Such fair balance is not achieved where almost absolute protection is guaranteed to family members of the owner of an internet connection through which copyright infringements have been committed by means of file sharing.

If a national court cannot, on application of the claimant, request that evidence on the defendant’s named family members be provided, it becomes impossible for it to assess whether infringement has occurred and who was responsible for it.  This seriously infringes the fundamental right to an effective remedy and the fundamental right to intellectual property, the CJEU said.

However, the CJEU said, if there is an alternative effective remedy available to the rights holder which would avoid unacceptable interference with the claimant’s family life, but by which the owner of the internet connection in question could be held liable in tort, then there could be no infringement of the rights holder’s right to an effective remedy and right to intellectual property.

In addition, the CJEU ruled, it was ultimately for the German court to determine whether there were any other means, procedures or remedies that would allow it to order the provision of the information necessary to prove whether copyright infringement had occurred and who had committed it. If there were not, then the relevant directives preclude national German legislation which, as interpreted by the national courts, states that 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. (Case C-149-17 Bastei Lübbe & Co KG v Michael Strotzer (18 October 2018) — to access the judgment in full, go to the curia search form, type in the case number and follow the link).