Much Ado About Little: Privately Litigated Internet Disconnection Injunctions

The International Review of Intellectual Property and Competition Law (IIC), February 2015, Volume 46, Issue 1, pp 10–37

Posted: 16 Jul 2014 Last revised: 3 Apr 2017

See all articles by Martin Husovec

Martin Husovec

Tilburg Law and Economics Center (TILEC); Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT); Stanford University - Stanford Law School Center for Internet and Society

Miquel Peguera

Universitat Oberta de Catalunya (UOC); Stanford University - Stanford Law School Center for Internet and Society

Date Written: July 13, 2014

Abstract

In this article we examine the legal framework of the European Union for injunctions against intermediaries whose services are used by a third party to infringe an intellectual property right, as set forth in the InfoSoc Directive and the Enforcement Directive. In particular, we consider the conditions to apply for the injunctions, taking into account how those conditions have been construed by the CJEU. We explore which is the minimum floor of injunctive relief Member States are obliged to provide under the Directives, as well as the maximum ceiling allowed, beyond which the protection granted would infringe upon the limits imposed by the EU Law. Next, we move to consider a particular type of injunctions that rights holders may apply for against intermediaries on the basis of Art. 8(3) of the InfoSoc Directive, namely those that would consist of enjoining an ISP from providing internet access to one of its users allegedly engaging in copyright infringement. A case already decided in Spain, Promusicae et al v. R Cable y Telecomunicaciones Galicia, granting such an injunction serves us as a study case to assess the problems these remedies face.

On the one hand, these privately litigated internet disconnection injunctions may be seen by rights holders as a promising tool to fight online copyright infringement – maybe an alternative to unsuccesful graduate response schemes. However, as we show in the article, these injunctions raise serious issues regarding their compatibility with the EU Charter of Fundamental Rights. Indeed, the possibility of effective and human-right-conform injunctions of this kind turns up to be very narrow. In other words, the Directive's provisions promise much, but if applied correctly, they deliver little.

Keywords: ISP liability, injunctions against intermediaries, secondary liability, internet disconnection injunctions, graduated response, three strikes

JEL Classification: O34

Suggested Citation

Husovec, Martin and Peguera, Miquel, Much Ado About Little: Privately Litigated Internet Disconnection Injunctions (July 13, 2014). The International Review of Intellectual Property and Competition Law (IIC), February 2015, Volume 46, Issue 1, pp 10–37. Available at SSRN: https://ssrn.com/abstract=2465616 or http://dx.doi.org/10.2139/ssrn.2465616

Martin Husovec (Contact Author)

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Stanford University - Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Miquel Peguera

Universitat Oberta de Catalunya (UOC) ( email )

Tibidabo Av. 39-43
Barcelona, 08035
Spain

Stanford University - Stanford Law School Center for Internet and Society

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

HOME PAGE: http://cyberlaw.stanford.edu/about/people/miquel-peguera

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