Must Internet service providers store the IP addresses of file sharers?

Copyright infringements on the Internet through illegal file-sharing networks are regularly uncovered by means of IP addresses of the respective infringers. Accordingly, it is important for the evidence gathering of law firms operating in this field to be able to secure evidence appropriately. The law firm Kornmeier & Partner, based in Frankfurt a.M. and Cologne, has now filed a constitutional complaint with the Federal Constitutional Court (BVerfG) in order to compel an Internet service provider to store IP addresses at their request for so long as a court decides on corresponding disclosure claims.

The constitutional complaint concerns the disclosure claim of the copyright holder represented by the law firm Kornmeier & Partner against an Internet service provider in the pursuit of infringements in Internet file-sharing networks.

After unsuccessful out-of-court attempts to reach corresponding arrangements with the Internet service provider, the law firm Kornmeier & Partner attempted to obtain a court order requiring an Internet service provider to store future IP addresses and connection data respectively "on demand" until the court issued an order or rightfully dismissed a corresponding application. In doing so, Kornmeier & Partner sought to prevent the otherwise frequently occurring prompt deletion of data, which would cause disclosure requests to occasionally fail due to the data having been deleted in the meantime.

Court decision
The Federal Constitutional Court (BVerfG) issued aorder dated 17.02.2011 – 1 BvR 3050/10 in which the constitutional complaint filed by the law firm Kornmeier & Partner was not accepted for decision.

In its reasoning, the judges in Karlsruhe stated that the directives for the protection of intellectual property on the one hand and data protection on the other do not require the Member States to provide for an obligation to disclose personal data in the course of civil proceedings. The Court of Justice considered the Member States and their courts to be obliged only to establish an appropriate balance between the fundamental rights as expressed in these directives and in the general principles of Community law.

Conclusion

The Federal Constitutional Court (BVerfG) in Karlsruhe, after balancing all arguments, places data protection above the disclosure interests of copyright holders. However, they can continue – albeit within narrower time limits – to enforce corresponding disclosure claims through the courts in order to determine an assignment of the ascertained IP addresses to potential file-sharing network users and subsequently issue them with costly cease-and-desist letters.