French Cour De Cassation Confirms Wide Interpretation Of Making Available/Communicating To Earth Every 2Nd Applied To P2p Software

                                                                 

While peer-to-peer cases of copyright infringement tend to focus on the infringement of the protected industrial plant together with the rights that are implicated therein (reproduction, making available) too every bit assigning legal liability for such acts, at that topographic point is, at times, to a greater extent than or less other facial expression of such cases, namely that which relates to the software that is used for such purposes.

French police delineate provides for a distinct law-breaking inwards this regard nether Section L.335-2-1 of the Intellectual Property Code:

"Is punishable past times iii years' imprisonment together with a fine of €300,000:

1. publishing, making available or communicating to the public, knowingly together with inwards whatsoever shape whatsoever, software plainly intended to unlawfully brand availble industrial plant or protected objects;

2. knowingly inciting, including past times agency of advertising, the job of software referred to inwards paragraph 1".

Influenza A virus subtype H5N1 recent ruling past times the Cour de cassation (27 Feb 2018) underscores the court's wide interpretation of the concept of "making available or communicating to the public" nether paragraph 1 of this Section.

In a instance involving the Emule-paradise peer-to-peer platform, the appellate courtroom had constitute that the Emule software had been made available to earth inasmuch as:

- regardless of the fact that the software itself was non stored on the site at outcome (emule-paradise), the site contained on its dwelling family page a sub-file that made available to earth the equivalent of an teaching manual for the impugned software;

- the site contained a deep link to an intenal page of the Emule site too every bit diverse sections offering advice together with instructions on how to install the software.

The plea earlier the Cour de cassation was that the infraction nether Section L.335-2-1 IPC fails where the defendant has "merely communicated to earth information on this type of software together with the agency it industrial plant but has non offered it for downloading either via storage or via access to a download on to a greater extent than or less other site".

This plea is soundly rejected past times the Cour de cassation, thereby endorsing the lower court's wide interpretation of the "making available" concept nether Section L.335-2-1, par. 1 IPC.

While 1 mightiness cause got outcome alongside such a wide reading of "making available or communicating to the public" nether Section L.335-2-1 IPC (i.e., every bit applied to software used to brand industrial plant available via peer-to-peer networks), it is hard to fighting that it is non consistent alongside recent case-law on linking, making available together with communication to earth inwards full general every bit applied to industrial plant themselves (see past times agency of illustration the CJEU's ruling of xiv June 2017 C-610/15, the so-called Pirate Bay case).

Link to ruling past times Cour de cassation (in French) here