Luxembourg, 06/06/2007 (Agence Europe) - A new storm is brewing in the fight over digital copyright, as announced in the oral argument before the European Court of Justice on Tuesday 5 June (case C-275/06). A Spanish court has brought a matter before the Court of Justice of the Communities in order to find out whether the Spanish internet services operator, Telefónica, can be obliged to reveal the personal details of certain internet users believed to be guilty of illegally downloading data protected by copyright.
The Spanish music industry Association “Promusicae” (Productores de Música de España) brought the case against Telefónica de España SAU before the Commercial Court of Madrid (juzgado de lo mercantil de Madrid), to try to oblige Telefónica to provide it with information regarding some of its internet access service subscribers. The individuals in question are believed to have used the software KaZaA to download files, the copyright of which belongs to members of Promusicae. KaZaA is data-sharing software which allows the user to download files, most often music or films, directly from the computer of another KaZaA user, over the internet. This software, of a kind which is known as “peer-to-peer” or P2P, includes a feature which makes each computer using the software into both a “server” and a “client” for others; this means that all files are distributed between all users, which makes it much harder to detect and prosecute anybody illegally storing and sharing than if a single point were used.
Although there is no “stock” of illegal files to flush out, individual transactions pertaining to illegal downloads of protected files can, however, be identified. Promusicae has identified a number of these transactions and asked Telefónica, which manages the internet connections in question, to reveal the personal details corresponding to the internet activities in question. Directive 2000/31/EC provides for an a priori confidentiality of these data, but under directive 95/46/EC, they can be passed on to the authorities if necessary for reasons of national defence or a criminal investigation. In this situation, the Court is trying to ascertain whether a civil investigation is also sufficient grounds to break the anonymity of the internet users in question. Directive 95/46/EC makes no specific reference to this situation, but this does not automatically mean that Promusicae's request will be turned down; it is worth noting that in January this year, the Tribunal de Grande Instance of Paris gave permission for the company Techland to demand the names and addresses of subscribers to several internet access providers, on the grounds of directive 2001/29 on copyright protection, even though this was a case of videogame piracy rather than a threat to national security.
Given the legal complexity of the case and its importance in terms of case law, the advocate general has been asked to present conclusions before the Court returns in its ruling. No date has yet been set, but the conclusions are expected in a few months' time. (cd)