In Case C-149/17 Bastei
Lübbe GmbH & Co. KG v Michael Strotzer, a German publisher sought
monetary compensation from Strotzer on account of its audio book being shared
for downloading on a peer-to-peer internet exchange by means of an internet
connection owned by Mr Strotzer.
Mr Strotzer denied having himself infringed copyright and
maintained that his parents, who live in the same household, also had access to
that connection. He did not provide further details as to when and how the
internet was used by his parents. According to the Munich court in which the
claim was brought, German case-law has the effect that, having regard to the
fundamental right to protection of family life, Strotzer’s claim amounts to a
defence which is sufficient under German law to exclude the owner of the
internet connection from liability. This is because, while the owner of an
internet connection by means of which copyright has been infringed is presumed
to have committed that infringement (provided that the IP address in question
has been correctly attributed to him) that presumption may be rebutted if other
persons had access to that connection. Furthermore, if a family member of that
owner had access to that connection, the owner may, having regard for the
fundamental right to the protection of family life, escape liability simply by
naming the family member without being required to provide further details as
to when and how the internet was used by that family member
In that context, the Munich court asked the Court of Justice
to interpret the provisions of EU law on the protection of intellectual
property rights.
The Court answers that EU law precludes national legislation
(such as that at issue, as interpreted by the relevant national courts) under
which 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.
The Court considers that a fair balance must be struck
between the various fundamental rights, namely the right to an effective remedy
and the right to intellectual property, on the one hand, and the right to
respect for private and family life, on the other. There is no such fair
balance where almost absolute protection is guaranteed for the family members
of the owner of an internet connection, through which copyright infringements
were committed by means of file-sharing.
If a national court before which a tortious action has been
brought cannot require, on application of the claimant, that it be provided
with evidence relating to the opposing party’s family members, proving the
alleged copyright infringement and who was responsible for it are rendered impossible,
which, consequently, seriously infringes the fundamental rights to an effective
remedy and to intellectual property, as enjoyed by the copyright holder.
That would not, however, be the case if, for the purposes of
preventing what was regarded as an unacceptable interference with family life,
right-holders had at their disposal another effective remedy, for example, by
which, in such a situation, the owner of the internet connection in question
could, consequently, be held liable in tort.
The Munich court must now determine whether there are any
other means, procedures or remedies which would allow the competent judicial
authorities to order that information necessary for proving copyright
infringement and who infringed it be provided.
