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The Court of Justice of the European Union Creates an EU Law of Liability for Facilitation of Copyright Infringement: Observations on Brein v. Filmspeler [C-527/15] (2017) and Brein v. Ziggo [C-610/15] (2017)

Forthcoming (in French) in 2016/5-6 Auteurs et Médias 401 (Belgium).

Columbia Law and Economics Working Paper No. 572

Columbia Public Law & Legal Theory Paper # 14-557

14 Pages Posted: 24 Aug 2017 Last revised: 5 Sep 2017

Jane C. Ginsburg

Columbia University - Law School

Date Written: August 22, 2017

Abstract

After a series of decisions in which the Court of Justice of the European Union appeared to be cutting back on the application of the right of communication to the public with respect to the provision of hyperlinks, the Court’s most recent decisions in Brein v. Filmspeler (C-527/15) and Brein v. Ziggo (C-610/15) concerning, respectively, sale of a device pre-loaded with hyperlinks to illegal streaming sites, and The Pirate Bay BitTorrent platform, indicate instead that the Court’s prior caselaw was in fact gradually advancing toward a European harmonization of the law on derivative liability (i.e., liability in the second degree) for violation of the right of communication to the public. These two most recent decisions have now achieved that harmonization. Moreover, harmonization was necessary given both the lack of uniformity regarding secondary liability across the national laws of the member states, and the growing economic importance of furnishing the means to access infringing sources (without serving as the initial source of the infringing communication).

This article will first briefly review of the facts of the cases. It then will examine how the Court’s reasoning results in a European law of communication to the public that reaches actors who do not originate illicit communications, but who knowingly facilitate them (I). Next, the analysis will show that the harmonized law of derivative liability can be considered the flip side of the law of non-liability for “the storage of information provided by a recipient of the service,... for the information stored at the request of a recipient of the service” already harmonized by art. 14 of the eCommerce directive 2000/31 (II).

The article concludes with a brief postscript evoking some comparisons with U.S. copyright law.

Keywords: Public Law, Law & Economics, Derivative Liability

Suggested Citation

Ginsburg, Jane C., The Court of Justice of the European Union Creates an EU Law of Liability for Facilitation of Copyright Infringement: Observations on Brein v. Filmspeler [C-527/15] (2017) and Brein v. Ziggo [C-610/15] (2017) (August 22, 2017). Forthcoming (in French) in 2016/5-6 Auteurs et Médias 401 (Belgium).; Columbia Law and Economics Working Paper No. 572; Columbia Public Law & Legal Theory Paper # 14-557. Available at SSRN: https://ssrn.com/abstract=3024302

Jane Ginsburg (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
Rm 710
New York, NY 10027
United States
212-854-3325 (Phone)
212-854-7946 (Fax)

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