Copyright infringement and IP address

The owner of the Internet access is responsible for the violation of copyright if it does not prove that the fact is due to a third part.

Entering copyrighted content on file-sharing systems is an infringement of copyright and the IP address may be enough to identify the author of the offence.

If the author is identifiable and traceable to a specific IP address, i.e. the code that identifies the devices connected to a computer network, the responsibility falls to the owner of the Internet connection used to commit the violation, unless he specifically proves that others can access that connection.

The Court of Justice of the European Union has established this by a judgment published on 18 October 2018 (Causa C-149/17).

The case arises from a claim for damages by a German publisher against Mr. S. who had shared a copyrighted audiobook within a file sharing platform, allowing downloads to an unlimited number of users in clear violation of the publisher’s copyright.

The publishing company had been able to identify exactly the IP address used to share the audiobook and had acted against the owner of that address, who had defended himself by asserting that he was not the only one to use the above Internet connection, accessible independently even by his family living together, but without giving further details about the time and nature of such use.

According to German law, such a defence is enough to exclude the liability of the owner of the Internet connection. The Court of Justice is called upon to ascertain whether such a rule is in accordance with the obligation on the Member States to provide for appropriate measures against infringements of copyright in accordance with Article 8 of 2001/29/EC. The Court of Justice disagreed.

The Court has ruled that the holder of the Internet connection cannot waive liability by pointing out that the connection is available to a member of his family.

Such a rule would be reflected in a general non-punishability of the infringer and in a lack of dissuasiveness and effectiveness of the sanctions provided for copyright protection, to the detriment of the holder of the rights infringed.

Offering almost absolute protection to the relatives of the presumed infringer would therefore imply a serious violation of the right to effective relief and of the intellectual property right to which the copyright holder is entitled, given the impossibility of identifying the person responsible for that unlawful conduct.

According to the Court, EU law precludes national legislation under which the holder of an internet connection through which copyright has been infringed may be exempted from liability simply by asserting that his family members also have in the abstract the possibility of accessing the same connection, without providing further utilization’s details.

There must be a responsible for this and he must be identified.

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