How much ought they know – ECJ on the scope of an intellectual property holder's right to information
Not as much as they would like, it would seem. They may request postal addresses, not however their electronic peers, be it an IP address, an e-mail address or a phone number. Such was the ruling the ECJ gave on the 9th of July in a case brought before it by the German Federal Court (éCJ case no. C-264/19). The full judgment is available here:
Background
Two films were uploaded to a large US video platform. The uploaders had neither consent nor right to do so. So much was undisputed between the parties. The company which held the IP-rights to both films however sued the platform as well as its parent company, demanding for them to turn over personal information of the infringers. The pseudonymous profile names they used on the platform were of little help in identifying them. So the company requested, amongst others, the IP address, the phone number, the e-mail address, as well as the IP address last used by the infringers.
The platform did indeed possess all of this information. Since the video was longer than 15 minutes it even had access to a phone number of the users. However, it argued that it was not obliged to turn any of this information over, as they were not addresses in the sense of the law (Sec. 101 par. 3 Nr. 1 German Copyright Act – UrhG). Further it were its obligation to protect their users and not to share any of their personal information unless obliged to do so.
While the court of first instance dismissed the claim, the court of appeal ruled in favor of the claimant. Lastly the Federal Court put the proceedings on hold to bring the issue before the ECJ. Its question, are e-mail addresses, IP addresses and even phone numbers, addresses according to Article 8 of Directive 2004/48? If they were, the defendant would have to provide them to enable the claimant to enforce his claims.
The judgment
The ECJ firstly points out that the concept of an address needs to conform to a European interpretation and must be assessed independently from any national sway (rec. 28). In doing so it found that in everyday language an address refers only to a person's permanent or habitual residence (rec. 30). More importantly it followed the Advocate General who found that in other EU provisions the term address is never used to encompass IP-addresses and the like unless explicitly stated. Following from this, the ECJ found no indications in the genesis of the Directive or elsewhere that things should be different here.
As a result, the ECJ argued that the minimum scope of information that Art. 8 of Directive 2004/48 requires, does not include e-mail addresses, nor IP addresses or phone numbers.
Germany has not gone beyond these minimum requirements. Although it could. The court pointed out that the European member states are not barred from granting IP-rights holders wider rights to information in cases of infringement (Rec. 39). That is as long as such measures are, as always, proportionate and observe all other general principles of EU law.
Implications
Both parties have good reasons for standing their ground in this dispute. Platforms want and need to protect their users, their trust is vital to their business. Also, it's not just the user that might get into the crosshairs, too often have platforms seen attempts to shift the blame for behaviour of their users on them. IP-right holders on the other hand have an innate interest in defending their rights and for deterring those who seek to wrongfully exploit them. Being able to identify and subsequently act against infringers is a critical part of this.
Most people no longer use their addresses when signing up to services online. That is unless they use them to shop online or for other services carried out at their address. It is entirely possible that the German government takes this issue up and broadens the right to information. It may however want to consider the privacy implications, especially when IP addresses are concerned.