Find my address… if you can: Constantin Film Verleih v. Youtube and Google

On 9 July 2020, the Court of Justice of the European Union (“CJEU”) clarified the scope of the right of information in the context of IP rights infringement proceedings (Case C-264/19), which is enshrined in Article 8 of Directive 2004/48/EC on the enforcement of intellectual property rights (the “Directive”).

Constantin Film Verleih – i.e., the applicant – has exclusive exploitation rights in respect of cinematographic works such as Parker and Scary Movie 5. Those works were uploaded on Youtube in infringement of the applicant's rights. Under Art. 8 of the Directive, Constantin Film Verleih demands that Youtube and Google (the parent company of Youtube) provide it with a set of information on users who have uploaded those works. Having obtained only fictitious user names, it requests additional information, such as e-mail addresses, mobile telephone numbers and IP addresses.

Pursuant to Art. 8 of the Directive, judicial authorities may order information from the infringer (and/or other person, such as Youtube and Google) “on the origin and distribution networks of the goods or services which infringe an intellectual property right”. The list of information includes, inter alia, “the names and addresses of producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as recipient wholesalers and retailers” (Art. 8(2)(a)). The questions referred for a preliminary ruling concern the meaning of the concept “addresses”.

According to the CJEU, this term is an independent concept of Union law (§ 28). Because it is not defined by Union law, its scope and meaning must then be determined “in accordance with its usual meaning in everyday language” (§ 29). The Court rules that the usual meaning refers only to the postal address, “that is to say, the place of a given person’s permanent address or habitual residence” (§ 30). The concept “address” does therefore not refer to e-mail addresses, telephone numbers or IP addresses (§ 30). As a result, Youtube is not obliged to transfer detailed personal data from uploaders who have infringed copyright.

However, the CJEU seems to be indirectly admitting that its interpretation may be too strict. In the present case, Constantin Film Verleih only obtained fictitious names, as Youtube does not check identities and does not ask for postal addresses when registering users wishing to upload content. The interpretation given by the CJEU does thus not allow the applicant to ensure the effective exercise of its intellectual property rights (that is however the objective of the Directive) by identifying the infringers. The Court then points out that the Directive provides for minimum harmonisation (§ 36) and that the Member States are free to lay down the possibility of ordering the communication of e-mail addresses, telephone numbers or IP addresses in their national legal framework (§ 39).

In its ruling, the CJEU follows the opinion of the Advocate General (AG) delivered on 2 April 2020, who justified his literal interpretation on the definition of the term “address” given by the Académie française, i.e. “the designation of the place where you can reach someone”. The Court could, however, have opted for a more flexible interpretation, more suited to today's realities. Indeed, the Académie française dictionary adds another meaning that is not included in the AG’s opinion: an address is also, by extension, an “indicative of the location of information stored in a computer”. Moreover, next to the definition of address as postal address, the Cambridge Dictionary also defines address as “a series of letters and symbols that tell you where to find something on the internet or show where an email is sent to”.

In short, it is on the one hand regrettable that the CJEU has adopted a rather conservative view, which is hard to reconcile with current and future technologies. On the other hand, this ruling may be justified by the desire not to add yet another layer of obligations on platforms, which have recently been heavily targeted by the CJEU itself and the European legislator.

By Edouard Cruysmans, Cyril Fischer and Erik Valgaeren

¹ See for instance the InfoSoc directive 2019/790 (Art. 17), the P2B Regulation 2019/1150, the Piesczek v Facebook case law of the CJEU (C-18/18).