Opinion AG CJEU: No presumption of liability of holders of internet connection for copyright infringements

Case C-149/17: Bastei Lübbe v Strotzer. Opinion A-G Szpunar. Preliminary questions Landgericht München I – Germany.

Copyright. IP enforcement. Bastei Lübbe is a producer of phonograms and holder of the copyrights and neighbouring rights to the audio version of a book. This phonogram has been shared with an unlimited amount of users on 8 May 2010 via an internet site for file-sharing (peer-to-peer). An expert determined that the IP-address belongs to Strotzer. Bastei Lübbe summoned Strotzer to stop the infringement, but this did not have any result. Bastei Lübbe therefore brought an action before the Ambtsgericht München. Strotzer disputed that he infringed the copyrights himself and he stated that his internet connection was sufficiently secured. Strotzer also stated that his parents, living in the same house and having access to the same internet connection, but not having the file on their computer to the best of his knowledge or having knowledge of the existence of the file, let alone using file-sharing software, did not infringe the copy rights either. Besides, the computer would have been turned off at the time of the infringement. The Ambtsgericht München rejected the claims, because it could not be determined whether Strotzer had committed the infringement. The referring court, the Landgericht München, is inclided to hold Strotzer liable for the infringement, because it does not become clear from his statement that the copyright infringement would have been committed by a third party using the same connection, making it very likely that the infringement has been committed by Strotzer. The referring court, however, has some questions about the burden of proof regarding the infringement. 

AG Szpunar proposes the CJEU answers the question keeping in mind the following. The AG holds that is should not be required of national law of Member States that a presumption of liability has to be implemented for copyright infringements committed via a certain connection. When national law has a presumption like this, it must be applied consistently to ensure the effectiveness of the protection. Rights to family life cannot be interpreted in a way that holders are practivally deprived of this to protect intellectual property rights.

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