The German publisher, Bastei Lübbe, has initiated a court proceeding in the Amtsgericht München (District Court of Munich) against the European citizen M. Strotzer, in which asks for the payment of a compensation with the argument that an audio book, over which he has copyrights and connected rights, was shared to be downloaded without limit by the users of the online platform for exchange of files, through the internet connection of which M. Strotzer is the owner.

The Amtsgericht München dismissed the proceeding as the court cannot consider that Mr. Strotzer has violated the copyrights, as he mentioned that his parents could also be liable for the violation, as they live in the same home and use the same internet connection.

In fact, the case law of the Bundesgerichtshof (German Federal Court of Justice) has, as presumption, that the owner of the internet connection has committed the violation if no other person could access it. Furthermore, the persons that have access to the same connection would never be obliged to provide additional clarifications regarding that access, as the family and private life is safeguarded by the European Union Charter of Fundamental Rights.

Regarding these facts, Bastei Lübbe appealed the Amtsgericht München decision to the Landgericht München I (Regional Court of Munich I), which has suspended the process and questioned the EU Court of Justice if the terms of the Directives 2001/29/CE and  2004/48/CE could be interpreted as disclaiming the owner of the internet connection from which the copyright violation was committed, if that owner indicates at least a member of the family with access to that same internet connection, without providing their details for the access.

The EU Court of Justice has referred that there must exist a balance between those different fundamental rights, the intellectual property and the right to protect the family life, knowing the latter does not allow the injured party to obtain sufficient elements of proof in order to appeal.

This situation would be different if the injured party could have another effective resource to prove the responsibility of the owner of the connection. In any case, it must be the Landgericht München I to verify if another effective resource exists that does not affect the private life of the users of the internet connection.

Answering the questions raised, the EU Court of Justice concluded that the European Law “ must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which, as interpreted by the relevant national courts, 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.”

In a nutshell, its necessary to considerer that, in situations such as the one mentioned in the primary proceedings, when the national regulations do not allow the national court to analyze the proceeding, as it is not possible to collect evidence that can demonstrate the violation or identify the person liable, there is a violation of the fundamental right to an effective appeal and intellectual property, precisely for not guaranteeing a balance between both rights. If the holders have another way to proceed with their effective appeal, that shall allow them to recognize the civil responsibility of the person liable for the violation, then the prohibition of interfering with the family and private life, shall always prevail.