French Cour de cassation Confirms Broad Interpretation of Making Available/Communicating to the Public as applied to P2P Software

                                                                 

While peer-to-peer cases of copyright infringement tend to focus on the infringement of the protected works and the rights that are implicated therein (reproduction, making available) as well as assigning legal liability for such acts, there is, at times, another aspect of such cases, namely that which relates to the software that is used for such purposes.

French law provides for a distinct offense in this regard under Section L.335-2-1 of the Intellectual Property Code:

"Is punishable by three years' imprisonment and a fine of €300,000:

1. publishing, making available or communicating to the public, knowingly and in any form whatsoever, software manifestly intended to unlawfully make availble works or protected objects;

2. knowingly inciting, including by way of advertising, the use of software referred to in paragraph 1".

A recent ruling by the Cour de cassation (27 February 2018) underscores the court's broad interpretation of the concept of "making available or communicating to the public" under paragraph 1 of this Section.

In a case involving the Emule-paradise peer-to-peer platform, the appellate court had found that the Emule software had been made available to the public inasmuch as:

- regardless of the fact that the software itself was not stored on the site at issue (emule-paradise), the site contained on its home page a sub-file that made available to the public the equivalent of an instruction manual for the impugned software;

- the site contained a deep link to an intenal page of the Emule site as well as various sections offering advice and instructions on how to install the software.

The plea before the Cour de cassation was that the infraction under Section L.335-2-1 IPC fails where the accused has "merely communicated to the public information on this type of software and the way it works but has not offered it for downloading either via storage or via access to a download on another site".

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

While one might take issue with such a broad reading of "making available or communicating to the public" under Section L.335-2-1 IPC (i.e., as applied to software used to make works available via peer-to-peer networks), it is difficult to argue that it is not consistent with recent case-law on linking, making available and communication to the public in general as applied to works themselves (see by way of example the CJEU's ruling of 14 June 2017 C-610/15, the so-called Pirate Bay case).

Link to ruling by Cour de cassation (in French) here