Presumption Of Liability For Owners Of Internet Connections Used To Infringe Copyright
On 18 October 2018, the Court of Justice of the European Union (the "ECJ") held in case C-149/17, Bastei Lübbe GmbH & Co. KG v. Michael Strotzer, that national legislation cannot shield the owner of an internet connection that was used for copyright infringement from liability merely because that owner can name at least one other family member who might have had access to the internet connection.
The case resulted from a reference for a preliminary ruling from the Landgericht München I which asked the ECJ to find an appropriate balance between two conflicting rights, both of which are protected under the Charter of Fundamental Rights of the European Union (the "Charter"): (i) the right to copyright protection, which incorporates the need for effective enforcement; and (ii) the right to the protection of family life.
The main proceedings involved Bastei Lübbe, the owner of copyright in an audio book, and Michael Strotzer, the owner of an internet connection through which the audio book had been illegally shared with an unlimited number of users of a peer-to-peer internet exchange. Mr. Strotzer denied that he had committed the copyright infringement, but also maintained that his internet connection was sufficiently secure. He furthermore asserted that his parents had access to the internet connection but that he did not know whether they had committed the infringement.
Under applicable German law, if it is shown that an internet connection was used to infringe copyright, the owner of that internet connection is presumed to have committed the infringement. However, this presumption can be rebutted by the owner, if he or she can show that other persons had independent access to the internet connection and were therefore capable of committing the infringement. Further, if a family member of that owner had access to the internet connection, the owner can, on the basis of the right to the protection of family life, escape liability merely by naming a family member without being required to provide further details as to how and when the internet connection was used by that family member.
The ECJ was asked to consider whether this...
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