French intellectual property provisions prevent the unauthorized use of copyrighted software and provide both civil and penal penalties for violations. Its privacy provisions, in response to European model legislation, state that organizations must take precautions to ensure the privacy of individuals and provide penalties for organizations that do not take such precautions. According to these provisions, any code by which individuals can be directly or indirectly identified is categorized as personal data. These provisions are implicated in a case currently before the Paris civil court known as the Tribunal de Grand Instance in Paris
In January 2007, the Tribunal issued an injunction, requiring seven French internet service providers (ISPs) to supply personal information of many of their internet users who had allegedly illegally accessed the game “Call of Juarez” on their computers using a peer-to-peer (P2P) file sharing software.Techland, the Polish company that produced the game, provided computer identification codes known as IP addresses to the court and requested that the ISPs release the names and addresses of the users corresponding to those codes.These codes were supplied to Techland by Logistep, a self-proclaimed anti-piracy company based in Switzerland but doing most of its work in Germany.
At least one ISP complied with the order and released the requested personal data regarding more than 5,000 users who had allegedly accessed the program. Upon receiving these data, the attorney for Techland contacted them and offered an ultimatum.They could pay the relatively small sum of 400 euros and sign a declaration, promising not to download games in the future and to delete all copies of the game in their possession, or they could defend their case at trial.Additionally, they were informed that if the case went to trial, and they were found guilty, the penalties for using pirated software could amount to 300,000 euros and three years in jail.Many people signed the declaration and paid the fees, but others declined to do so, stating, for example, that they were innocent because they had downloaded a legitimate “demo” version of the program.
Similar letters were also sent to internet users who downloaded other games in Great Britain and Germany, among other countries.With the widespread use of internet technologies, many countries have established agencies that are dedicated to piracy prevention.For example, primary goals of the Recording Industry Association of America (RIAA) include identifying music pirates and shutting down internet sites that make illegal recordings available.
Four ISPs, Neuf Cegetel, France Telecom, Telecom Italia and Tele2, are contesting the order to divulge the personal information of their subscribers: French privacy provisions prohibit the release of such data, either negligently or intentionally; violation of these provisions may be punishable by five years in prison and a 300,000 euro fine. Furthermore, determining a subscriber’s personal information based on an IP address is a costly process, and the injunction does not require Techland to cover the expenses associated with it.
This case will create a precedent in France regarding the balance between IP rights holders’ protection on the internet on the one hand and privacy rights on the other hand, in the light of the French and EU regulations governing the collection and use of personal data.
The case was heard by the court in June 2007 and the decision should be made public very shortly. Considering the procedural and substantial legal path taken by Techland, we expect that the orders allowing the collection of personal data will be reversed.
(To be continued)
For further requests you can also contact our correspondent in France, CMG & Associés - Avocats
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