Shared use of Internet at home cannot be an excuse for piracy

 

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Attenzione! …. for those who perform acts of piracy from the Internet connection at home. The fact of residing in a home with other roommates, all potentially capable of using the Internet, will not be enough to exempt themselves from liability by claiming, as a defense, that offender could be someone else. The Court of Justice of the European Union has ruled that there must be a way to allow the a copyright holder to defend his interests in case of violation perpetrated through shared Internet connections.

It may seem like a common sense solution but, in the case originated from Bavaria, the German rules on the protection of family life did not allow further investigations within the family unit that used the offending Internet connection. In fact, a German publisher, Bastei Lübbe AG, had sued a Bavarian citizen, Mr. Strotzer, because through the latter’s Internet connection had been downloaded, and subsequently shared on a peer-to-peer platform, a file containing an audiobook of the publisher. Mr. Strotzer defended himself by denying having infringed the copyright of the publisher and stating, moreover, that his parents, with him cohabiting, had equal access to the connection, without however providing further clarification on the possible use that the parents themselves would have made of the Internet connection. The Bavarian court of first instance rejected the application of Bastei Lübbe, considering that the fundamental right for the protection of family life prevailed in this case. However, the appeal judge felt differently and asked the European court whether such a defense may be sufficient to exclude the responsibility of the holder of the Internet connection.

The European court simply stated that right holders must have an effective form of redress or tools to enable the competent courts to order the disclosure of the necessary information. It is therefore not a question of weakening the fundamental right to privacy, but rather a signal sent to the German authorities to provide all the necessary instruments to ensure that there is a balance between the various interests at stake, including protection of intellectual freedom. In the present case, Mr Strotzer will therefore have to argue better about the use of his Internet connection by third parties, including mother and father.

The case of shared Internet connections can go beyond home and involve broader situations, such as the communities of students, workers, friends, as well as public WiFi connections. The European ruling does not oblige the holder of the Internet connection to ensure the identification of each user, rather to make themselves more cooperative with the courts in the search for offenders. The European court evokes a possible remedy, namely an objective liability of the Internet subscriber (as it happens with cars), but this seems to be an extreme solution, to be used only when the national legislator does not allow operations to identify the offenders among those who have access to a shared Internet connection.

The present case may seem a little excessive given the family context from which it originates, but it must be borne in mind that the objective of the judicial action was not the illicit use of a protected content (a condemnable action but with a modest impact on the publisher), rather the uploading of a file on a peer-to-peer platform accessible to anyone.

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