Home & Office

Illegal file-sharing: You can't get away with blaming a family member, says top court

Shifting the blame onto a family member for illegal file-sharing on your internet connection is not good enough without specifics, says EU's top court.
Written by David Meyer on

Countries in the European Union can't allow an individual to get away with copyright infringements by merely naming other family members who might have used his or her internet connection to share files, the EU's top court has ruled.

The file-sharing verdict came down on Thursday from the Court of Justice of the European Union (CJEU), in a case involving an audio book from the German publisher BasteiLübbe.

The audiobook had been unlawfully shared on a peer-to-peer platform via the connection of a man named Michael Strotzer, which prompted the publisher to sue Strotzer.

Strotzer denied having anything to do with the file-sharing in question, instead pointing out that his parents, who live with him, had access to the same connection. That, he said, was the end of the matter.

A Munich regional court said German federal case law does indeed allow this defense on the basis of the fundamental right to protection of family life.

SEE: IT pro's guide to GDPR compliance (free PDF)

The court said the case law doesn't even require the connection's owner to provide further details of how the family member supposedly used it, so there's no opportunity for anyone to then go after the family member for liability.

However, the court asked the CJEU to clarify the matter and, according to the EU court, that German case law doesn't fly.

The CJEU, also commonly known as the European Court of Justice, or ECJ, explained that there needs to be a balance between the rights to privacy and family life, and the rights to hold intellectual property and get an effective legal remedy from the courts.

If family members get "almost absolute protection" of the sort claimed in the Strotzer case, the court said, that's not a fair balance because the publisher doesn't get to defend its rights.

In other words, the defense is no defense without evidence of who perpetrated the file-sharing.

"EU law precludes national legislation (such as that at issue, as interpreted by the relevant national courts) under which the owner of an internet connection used for copyright infringements through file-sharing cannot be held liable to pay damages if he can name at least one family member who might have had access to that connection, without providing further details as to when and how the internet was used by that family member," the CJEU said.

SEE: Cybersecurity in an IoT and mobile world (ZDNet special report) | Download the report as a PDF (TechRepublic)

So it's now back to the Munich court to decide whether there's some way under German law to force Strotzer to provide "information necessary for proving, in circumstances such as those at issue in that case, copyright infringement and who infringed it".

Forcing him to do so might make for an awkward Christmas at the Strotzer household, but it would comply with EU copyright law.

Germany seems to be making a habit of testing the limits of European copyright law. A couple of years ago, the CJEU handed down a ruling in the case of a Bavarian shopkeeper named Tobias McFadden and his open Wi-Fi hotspot.

The ruling established that hotspot operators aren't liable for other people unlawfully file-sharing through their connections, but also that rights holders can force them to secure their networks to prevent the filesharing.

Previous and related coverage

The EU's new Copyright Directive really is that bad

New rules will make it harder to share links and content. So can it be stopped?

Facebook can block hate speech, even if it's not illegal, court rules

Although an anti-immigrant comment doesn't break German law, Facebook can still delete it.

Police get broad phone and computer hacking powers in Germany

The German parliament has waved through a massive expansion of police hacking powers.

Spies win right to keep monitoring all traffic at world's biggest internet hub

Vital internet hub, De-Cix in Frankfurt, has lost its fight against German intelligence services' mass surveillance.

No, we're not trying to get backdoors in smart homes, cars, says Germany

The German government is trying to quell outrage over reported smart-home and car-bugging proposals.

EU copyright reform proposal: 3 things businesses need to know TechRepublic

The controversial copyright measure is making its way through the European Parliament ahead of a committee vote on June 20 and parliamentary vote in July or September.

EU votes to adopt 'upload filters' as part of internet copyright law CNET

Critics say the law could make the internet more closed in future.

Editorial standards


How to use your phone to diagnose your car's 'check engine' light
BlueDriver Bluetooth dongle

How to use your phone to diagnose your car's 'check engine' light

How to access your iPhone's camera faster with this hidden feature

How to access your iPhone's camera faster with this hidden feature

Google Play malware: If you've downloaded these malicious apps, delete them immediately

Google Play malware: If you've downloaded these malicious apps, delete them immediately