The right to family life must not be interpreted in such a way as to deprive rights-holders of any real possibility of protecting their copyright, said Advocate General Maciej Szpunar, in conclusions returned on Wednesday 6 June (C-149/70).
In 2010, an audiobook was shared, via the computer of a Mr Strotzer, with an unlimited number of users of an Internet sharing platform (peer-to-peer). The copyright owner took legal action in Germany to obtain damages.
Strotzer denied having breached the copyright himself, claimed that his connection was sufficiently secure and argued that his parents, with whom he lives, most probably committed the act in question, even though they were unaware of the presence of the work on the computer and did not use the sharing software themselves.
In Germany, the owner of an Internet connection is assumed to have committed an unlawful act if no other person could have been using the connection at the time the act was committed. If, however, at the time the act was committed, the Internet connection was not sufficiently secure or was deliberately made available to others, the owner of the connection is not assumed to have committed the violation.
The owner of the Internet connection simply needs to state that other people (whose identities he or she must confirm) had autonomous access to that Internet connection and may therefore have committed the act in question. If this is a family member, the owner of the Internet connection does not need to provide any further clarifications about the time and nature of the Internet use, due to the right to family life set out in the German Constitution.
The German court asked the Court of Justice whether the owner of the Internet connection, in this case Mr Strotzer, can evade his compensation obligation on the grounds that another member of his family had access to his computer and could have committed the act.
In his conclusions, the Advocate General acknowledges that it is difficult for copyright holders to identify individuals who breach their rights over the Internet and to prove their involvement. Indeed, the only clue it is usually possible to find is the IP address from which the act was committed.
This identification of the owner of the IP address, although correct, does not constitute evidence of the responsibility of a given individual, particularly if the Internet connection in question is accessible to others.
This explains why certain member states, such as Germany, have set in place a presumption of guilt for the owner of the Internet connection for any infringement committed from his or her IP address. Once this presumption is instituted in national law, it must be applied consistently and effectively, the Advocate General explained.
The Advocate General continues his analysis by observing that invoking the right to privacy and family life makes it possible, under German law, to limit the obligation of the owner of the Internet connection to provide information on the individual who is likely to have breached the copyright.
This means that the right to privacy and family life is in competition with intellectual property rights.
Szpunar considers that the right to privacy and family life should not be interpreted in such a way as to deprive copyright owners from any meaningful possibility of being protected. In particular, the fact that a person lives with other members of his or her family alone should not automatically lead to an exclusion of his or her liability. (Original version in French by Mathieu Bion)