Opinion of the Advocate General — ECLI:EU:C:2020:261
Date: 2020-04-02
Language of the case: German
Subject matter: Intellectual, industrial and commercial property;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
29 March 2019 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
21 February 2019 
Applicant, appellant and respondent in the appeal on a point of law: 
Constantin Film Verleih GmbH 
Defendants, respondents and appellants in the appeal on a point of law: 
YouTube LLC 
Google Inc. 
  
Subject matter of the case in the main proceedings 
Action brought by the holder of exclusive film exploitation rights against the 
internet platform ‘YouTube’ and its parent undertaking ‘Google’, seeking to 
obtain information on the email address, telephone number and IP address of users 
who uploaded those films illegally onto YouTube 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred 
1. Do the addresses of the producers, manufacturers, distributors, suppliers and 
other previous holders of the goods or services, as well as the intended 
wholesalers and retailers, mentioned in Article 8(2)(a) of Directive 
EN 
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2004/48/EC and covered, as appropriate, by the information referred to in 
Article 8(1) of Directive 2004/48/EC, also include  
(a) the email addresses of service users and/or 
(b) the telephone numbers of service users and/or 
(c) the IP addresses used by service users to upload infringing files, 
together with the precise point in time at which such uploading took 
place? 
2. If the answer to Question 1(c) is in the affirmative: 
Does the information to be provided under Article 8(2)(a) of Directive 
2004/48/EC also cover the IP address that a user, who has previously 
uploaded infringing files, last used to access his or her Google/YouTube 
user account, together with the precise point in time at which access took 
place, irrespective of whether any infringement was committed when that 
account was last accessed? 
Provisions of EU law cited 
Article 8 of Directive 2004/48/EC of the European Parliament and of the Council 
of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 
L 157, p. 45) 
Provisions of national law cited 
First sentence of Paragraph 101(1), Paragraph 101(2)(3), Paragraph 101(3)(1) of 
the Urheberrechtsgesetz (Law on Copyright) (‘the UrhG’) 
Point 2 of the first sentence of Paragraph 111(1) of the Telekommunikationsgesetz 
(Law on telecommunications) (‘the TKG’) 
Brief summary of the facts and procedure 
1 The applicant is a German undertaking asserting exclusive rights to exploit the 
films ‘Parker’ and ‘Scary Movie 5’. The first defendant operates the Internet 
platform ‘YouTube’, onto which video files can be uploaded and made available 
to other Internet users. The second defendant is the first defendant’s parent 
undertaking and owner of the domain used by the first defendant for its Internet 
platform. In order to upload videos onto the Internet platform ‘YouTube’, users 
must first create a ‘Google user account’ with the second defendant and, in order 
to do so, provide a name, email address and date of birth. In order to post a video 
over 15 minutes long on the platform, a mobile phone number must also be 
provided, which is used to send the activation code needed to be able to post. 
CONSTANTIN FILM VERLEIH 
 
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According to the defendants’ joint terms of service and privacy policies, platform 
users consent to server logs, including the IP address, date and time of use as well 
as individual requests, being stored and to those data being used by participating 
undertakings. 
2 On 29 June 2013, the film ‘Parker’ was uploaded in full length and in German 
under the username N1 onto the first defendant’s Internet platform and accessed 
over 45 000 times until it was blocked on 14 August 2013. In September 2013, the 
film ‘Scary Movie 5’ was uploaded in full length under the username N2 and 
accessed over 6 000 times until it was blocked on 29 October 2013. In addition, a 
copy of that film was uploaded again on 10 September 2014 under the username 
N3 and accessed more than 4 700 times until it was blocked on 21 September 
2014. 
3 The applicant seeks an order requiring the defendants to provide to it information 
on the users N1, N2 and N3, by indicating, for each of them, the following data 
stored by the defendants: (a) user’s email address; (b) user’s telephone number; 
(c) IP address used by the user to upload the file, together with the precise point in 
time at which the upload took place, mentioning the date and time of day, 
including minutes, seconds and the time zone (‘the time of upload’); (d) IP 
address last used by the user to access his or her Google/YouTube user account, 
together with the precise point in time at which access took place, mentioning the 
date and time of day, including minutes, seconds and the time zone (’the time of 
access’). 
4 The Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, 
Germany) dismissed the application. On appeal by the applicant, the 
Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am 
Main) partially upheld the appeal and ordered the defendants to provide 
information on the respective email addresses of the users. The applicant and the 
defendants have lodged an appeal on a point of law before the Bundesgerichtshof 
(Federal Court of Justice, Germany) against that ruling. The applicant maintains 
its claim that the defendants should be ordered to provide information on the 
users’ telephone numbers and IP addresses also. By their appeal on a point of law, 
the defendants seek to have the action dismissed in its entirety. 
Brief summary of the basis for the request 
5 The applicant bases its right to information on the first sentence of 
Paragraph 101(1), Paragraph 101(2)(3) and Paragraph 101(3)(1) of the UrhG. That 
provision is intended to transpose Article 8 of Directive 2004/48 and is therefore 
to be construed in accordance with the directive. Whether the appeals on a point 
of law are successful depends on what information must be provided under 
Article 8(2)(a) of Directive 2004/48. The applicant’s appeal on a point of law will 
be successful if it can also request information on the users’ telephone numbers, as 
well as the IP addresses used by them to upload the infringing files. The 
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defendants’ appeal on a point of law will be well founded if they are not required 
to provide information on the users’ email addresses. 
6 Question 1(a): This centres on whether the provision of information on ‘names 
and addresses’ within the meaning of Article 8(2)(a) of Directive 2004/48 covers 
email addresses. The referring court is of the opinion that the protective purpose 
of Paragraph 101(3) of the UrhG and of Article 8(2)(a) of the directive requires 
that email addresses must also be covered by it. A right to information asserted 
against third parties should allow the rightholder to identify the infringer. Since 
only a (fictitious) username and email address are recorded when a user of the first 
defendant’s platform creates an account, it would be difficult from the outset to 
identify the infringer if the rightholder were unable to obtain any information on 
that email address. This, however, would be contrary to the objective of Directive 
2004/48 (see recital 3 of the directive). 
7 Question 1(b): It is unclear whether the term ‘address’ in Article 8(2)(a) of 
Directive 2004/48 also covers telephone numbers. According to the clear wording 
of that provision, telephone numbers are not covered by it.  
8 An argument to the contrary is that, due to the anonymity guaranteed to users on 
platforms such as that of the first defendant, the defendants by definition generally 
cannot provide any information on ‘names and addresses’, meaning first and last 
name and postal address. By contrast, a telephone number is not only requested 
but also verified by sending an activation code when a user wishes to post a video 
over 15 minutes long on the first defendant’s platform. When telephone numbers 
are assigned, the name and address of the subscriber must be stored pursuant to 
point 2 of the first sentence of Paragraph 111(1) of the TKG. Given that this is not 
the case when email addresses are assigned, the provision of information on 
telephone numbers may constitute the only effective and meaningful means of 
enforcing intellectual property rights in respect of the infringements at issue.  
9 Also in support of that opinion is the fact that modern telecommunication 
technology makes it possible to send letters by SMS, MMS or via instant 
messaging services to a telephone or other mobile terminal. Telephone numbers 
then serve as an ‘address’ for such written communications. 
10 Question 1(c): The question arises as to whether Article 8(2)(a) of Directive 
2004/48 also covers the IP address used to upload the infringing files. 
11 Its function may argue against this. IP addresses are not assigned to a specific 
person, but rather — and in the case of dynamic IP addresses, moreover, only 
temporarily — to the network interface of a device that is communicating with the 
Internet. They do not, therefore, make it possible for a specific person to be 
identified. Furthermore, IP addresses identify only the device that is 
communicating with the Internet on the network interface, but no additional 
devices connected to that device. 
CONSTANTIN FILM VERLEIH 
 
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12 A further argument against is that IP addresses constitute personal data (see 
judgment of 19 October 2016, Breyer, C-582/14, EU:C:2016:779). Therefore, it is 
necessary to balance the fundamental rights concerned. When interpreting national 
legislation in accordance with a directive, the courts of the Member States must 
ensure a fair balance between the various fundamental rights protected in the EU 
legal order. When transmitting personal data to third parties for the prosecution of 
copyright infringements, the following, in particular, must be taken into 
consideration in the balancing exercise: the right to respect for private life 
(Article 7 of the EU Charter of Fundamental Rights) and the protection of 
personal data (Article 8 of the EU Charter of Fundamental Rights), on the one 
hand, and the right to property (Article 17(2) of the EU Charter of Fundamental 
Rights), on the other hand. 
13 According to Article 8(2)(a) of Directive 2004/48, users must accept (only) the 
transmission of their name and address. The provision of information on 
IP addresses used by them could affect their right to respect for private life. 
Furthermore, it should be noted that the provision of information on a (dynamic) 
IP address, which always also extends to the precise time of access because it is 
the only way in which it may make it possible for the terminal to be identified, 
also reveals the precise point in time at which the Internet communication took 
place, including the time zone, and details of the communication activities, which 
are protected by Articles 7 and 8 of the EU Charter of Fundamental Rights (see 
judgment of 8 April 2014, Digital Rights Ireland und Seitlinger and Others, 
C-293/12 and C-594/12, EU:C:2014:238, paragraphs 26 and 27). In addition, the 
provision of information on an IP address may affect the right to private life of 
uninvolved third parties if the subscriber is not the infringing party. 
14 In support of the inclusion of IP addresses within the ambit of Article 8(2)(a) of 
Directive 2004/48 is the argument that the term ‘address’ may, by definition, 
include any type of address and therefore also an (electronic) IP address. That 
address, in the same way as a postal address and an email address, facilitates the 
identification of copyright infringers. 
15 Also supporting that view is the purpose of Directive 2004/48, which, according 
to recital 3 thereof, is intended to contribute to the effective enforcement of 
intellectual property rights. That objective cannot be guaranteed as long as the 
traditional understanding of the terms ‘names and addresses’ is relied on. The 
provision of information on ‘names and addresses’ is regularly ineffective because 
those data are usually neither collected nor verified by platform operators such as 
the first defendant. The related serious infringement of the right to intellectual 
property protected by the Charter (Article 17(2) of the EU Charter of Fundamental 
Rights) may be regarded as not respecting the requirement that such a fair balance 
be struck between the fundamental rights which must be reconciled (see judgment 
of 18 October 2018, Bastei Lübbe, C-149/17, EU:C:2018:841, paragraph 46). In 
that context, releasing an IP address together with an email address and possibly 
also a telephone number could represent an appropriate means to identify the 
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infringer and thereby contribute to the effective enforcement of intellectual 
property rights for the purposes of Directive 2004/48. 
16 Should the answer to Question 1(c) be in the affirmative, the further question then 
arises as to whether information may also be requested on the IP address last used 
by the user — irrespective of any related infringing act — to access his or her 
Google/YouTube user account (Question 2). 
17 In support of an affirmative answer is the argument that, since a dynamic IP 
address constantly changes, the respective latest IP address should come within 
the scope of the information to be provided because it is the only one that actually 
constitutes the ‘address’ of the service user for the purposes of Article 8(2)(a) of 
Directive 2004/48. 
18 It would not be possible to extend the right of information to the latest IP address 
irrespective of any related infringing act if Article 8(2)(a) of Directive 2004/48 
were to require a connection to an infringement. The IP address last employed to 
use a Google/YouTube user account is not necessarily linked to the infringing use 
at issue. The need to have such a link could, however, arise from the fact that the 
defendants can be sued under Article 8(1)(c) of Directive 2004/48 only because 
they provided a service used for infringing activities and the information to be 
provided under Article 8(2)(a) and (b) of Directive 2004/48 applies precisely to 
such infringing services.