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The internet as a remote platform for day-to-day human interactions has been growing exponentially for many years – and internet crime along with it. Therefore, the existing legal framework, which often comes from the "offline" age, is sometimes tested for its ability to cope with the new online reality.
It frequently fails, as confirmed by the latest EU court decision. Whether you are a law enforcement officer or a pirate, this judgment may be relevant for your business or private life.
There are many online platforms that allow authors to publish their music, films and other content. But the same channels are also used to illegally share copyrighted works between private users uploading and downloading content without the participation of copyright holders. That is why copyright holders often try to use the existing laws to track down these infringers. Constantin Film Verleih, which holds exclusive rights to films like Parker and Scary Movie 5, asked YouTube LLC and Google Inc. to provide comprehensive information about users who illegally uploaded these films to YouTube. The resulting decision of the Court of Justice of the European Union ("CJEU") No. C-264/19 is based on a narrow interpretation of the term "address" in connection with the protection of intellectual property.
Under Article 8 (2) (a) of Directive 2004/48/EC, during proceedings on infringement of intellectual property rights courts may order the infringer or other person to provide information about the origin and distribution networks of the infringing goods or services. The information must include the names and addresses of the producers, manufacturers, distributors, suppliers and other previous holders of infringing goods or services, as well as the intended wholesalers and retailers.
Online infringers using YouTube or other platforms are usually hidden behind false identities, which are useless for the copyright holders trying to bring them to justice. Therefore, Constantin Film Verleih tried to take advantage of the above-mentioned legal provision and have YouTube and Google disclose not only the false names and addresses of the infringers but also their actual e-mail addresses, IP addresses and phone numbers.
The German Federal Court of Justice referred the following question for a preliminary ruling to the CJEU: Do the "addresses" of the producers (or other persons) of the goods and services mentioned in Article 8 (2) (a) of Directive 2004/48 also include the e-mail addresses, telephone numbers and IP addresses used by service users?
Despite practical arguments to the contrary, the court took a formalistic approach. Because the Directive does not define the term "address", its meaning and scope must be determined in accordance with its usual meaning in everyday language, considering the context, the purpose of the rules and its origins. And the usual meaning of the term "address" in everyday language covers only a postal address which is a permanent address of habitual residence. Therefore, the CJEU took the position that the Directive does not allow for the disclosure of e-mail addresses, telephone numbers or IP addresses.
The judges obviously considered a broader information right to contradict the lawmakers' concerns about the privacy of individual platform users, which were reflected in the express wording of the Directive itself. Therefore, the CJEU applied self-restraint and refused to go beyond the literal wording of the law. The court also expressed its belief that even this narrow information right is in line with the purposes of the Directive.
The court's restrictive view regarding the information right could seem surprising in light of the commercial reality, where infringers are often able to escape justice by using false "offline" names and addresses. This defeats the purpose of the Directive, at least in the anonymous virtual space of the internet. There are persuasive arguments that the interpretation of the term "address" should change in today's digital age to also include at least the IP address of the infringers, so that they may actually be identified.
In the medium-term, we can expect increased pressure from rightsholders on national lawmakers to update the local laws implementing the Directive to better reflect the everyday reality of virtual crime. After all, the Directive was adopted on a so-called minimum harmonisation basis, which allows national legislators to expand the scope of information provided to rightsholders. The wording of the Czech law is just as "offline" as the above-mentioned German one, meaning that this small clash in the eternal battle between intellectual property and individual freedoms may move from the CJEU to the parliaments of the EU Member States.
authors: Stanislav Bednář, Libuše Dočekalová
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Attorney at Law