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EU ruling clarifies burden of proof on illegal file-sharing

People identified as being responsible for illegal file-sharing must be able to provide information to show that another user of their internet connection could have been responsible for the act if they wish to avoid being held liable for copyright infringement, according to a new ruling by the EU's top court.19 Oct 2018

The Court of Justice of the EU (CJEU) ruled on Thursday that the information that alleged infringers have to provide when seeking to prove their innocence must be more than simply the name of another person who had access to their internet connection at the time of the alleged infringement.

The CJEU confirmed the requirements in a ruling concerning a dispute before the courts in Germany between the owner of copyright for an audio book and a man alleged to have illegally shared a copy of that book for download by "an unlimited number of users" via a peer-to-peer internet exchange.

According to the judgment issued by the CJEU, an IP address traced back to Michael Strotzer's internet connection was identified as the source of the illegal file sharing. Phonogram producer Bastei Lübbe sued Strotzer for copyright infringement, but Strotzer has claimed that he was not responsible for the infringement. He also claimed his internet connection was sufficiently secure. Strotzer identified his parents as potential other users of his internet connection, but said to his knowledge that they "did not have the work in question on their computer, were not aware of the existence of the work and did not use the online exchange software", the ruling said.

The case examined German case law and its compatibility with EU copyright laws.

German case law provides that, where an internet connection has been identified as the source of alleged copyright infringement, the owner of that internet connection is to be presumed as liable for the alleged act. This is unless their internet connection is insecure or knowingly made available for others to use.

In cases where internet connection owners are to be presumed as liable, those individuals can, under German case law, present facts to show that another person had independent access to their internet connection and was therefore capable of having committed the alleged copyright infringement. That case law does not require the owner of the internet connection to give more than just the name of family members who had such access. Details such as those "relating to the time and the nature of the use of that connection" do not need to be provided, according to the CJEU, which said that the case law relies on rights to the protection of marriage and family provided under the EU's Charter of Fundamental Rights.

However, on Thursday, the CJEU said EU copyright laws, including rules relating to the enforcement of intellectual property (IP) rights, requires internet connection owners to provide more information about the use of their connections by family members.

It said national laws that require just the name of a family member to be provided are "precluded" under the EU's copyright regime. Those individuals must provide "further details as to when and how the internet was used by that family member", the court ruled.

Igor Barabash, a Munich-based technology law expert at Pinsent Masons, the law firm behind Out-Law.com, said: "The fact that this question landed with the CJEU is on one hand quite surprising since the German courts, including the German Federal Supreme Court, already have well-established case law on dealing with burden of proof in file sharing cases. One the other hand, the current case law offers a potential 'get-out-of-jail free card' if the potential infringer simply states that another person in their family had used the internet connection. This might be the reason why the referring court in Munich, which is well known within Germany to be quite favourable to right owners, submitted the questions to the CJEU."

Barabash said that although the CJEU ruling may appear to be "a ground breaking decision that transfers the burden of proof on illegal file sharing towards the connection owner", it is possible that the ruling might be read as consistent with German case law. Whether that is the case or not will depend on how the judge in Munich evaluates the arguments presented in light of the CJEU's ruling and clarifies the question of responsibility by applying the general burden of proof rules, he said.