The case (C-149/17) pits the German publishing house Bastei Lübbe against a private individual, Mr Michael Strotzer, who has an internet connection which would have been used to share, and make downloadable, an audio book on a platform Peer-to-peer with an unlimited number of users.
For the record, French law established the entity HADOPI (High Authority for the Dissemination of Works and Protection of Rights on the Internet) and what is commonly referred to as the “graduated response”. Essentially, in such cases, the HADOPI, or more precisely the HADOPI Rights Protection Commission (CPD), sends successive warnings to the holder of the Internet subscription used.
After three unsuccessful warnings, the CPD may seize the judicial authority on the basis of the negligence breach for failing to prevent the use of its connection for infringement. The contravention can go up to 1,500 euros or 7,500 euros for legal persons.
The CPD can also invoke the basis of the offense of counterfeiting, likely to result in a sentence of up to 3 years imprisonment and 300,000 euros fine or 1,500,000 euros for a legal person.
German law provides a way out for Mr Strotzer. According to the case law of the Federal Court of Justice (Bundesgerichtshof), it is possible to invoke the fundamental right to the protection of family life, and the fact that family members have had access to the internet connection, such that the holder of said connection may not assume responsibility. It was on this basis that Mr. Strotzer argued that his parents living at home had access to this connection, without further specification.
In this context, the Landgericht München I asks the Court of Justice to interpret the provisions of Union law on the protection of intellectual property rights.
The judgment of the CJEU is more in line with the French interpretation. The Court asks the Landgericht München I to find the right balance between 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.
The Court considers that such a balance is lacking when there is almost absolute protection for the family members of the holder of an Internet connection.
The court asks the Landgericht München I to verify the existence, in German law, of other means, procedures and possible remedies.
To be followed closely…