- AG’s opinion—users of peer to peer networks and communication to the public (Mircom v Telenet)
- What are the practical implications of this opinion?
- What was the background?
- What did the AG opine?
- Case details
TMT analysis: The Advocate General (AG) has given an opinion on whether users of a peer to peer (P2P) network who download and upload parts of a file undertake a ‘communication to the public’ (CTTP). The AG also considered the issue of whether a contractual holder of copyright (Mircom) who claims damages from alleged infringers can benefit from the same rights as authors under Directive 2004/48/EC, the EU Enforcement Directive and related issues on the processing of personal data. In this case, the AG considered whether so called ‘copyright trolls’ have an equal right of claim as a traditional rightsholder. The AG opined that: (a) Mircom, whose business model was to contact as many end users as possible and rely on their embarrassment at being identified as downloading P2P pornographic videos, to encourage them to pay a ‘settlement’ (of usually a fixed sum), should not be entitled to the same protection and access to rights as other more traditional rights owners; and (b) the national court must refuse to grant the right of information provided for in Article 8 of the EU Enforcement Directive (ie information to identify owners of IP addresses) if in the circumstances the request for information is unjustified or unlawful; and (c) the recording of the IP addresses of persons sharing protected works on P2P networks constitutes the lawful processing of personal data under the EU GDPR, Regulation (EU) 2016/679 if that recording is carried out in the pursuit of a legitimate interest of the controller or a third party, in particular in order to file a justified request for the disclosure of the names pursuant to the EU Enforcement Directive. Written in partnership with Joanne Frears, solicitor and leader in IP and technology law at Lionshead Law.
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