03/02/2020 CURIA - Documents a third party to infringe a copyright or related right. According to that judgment, it is reasonable for such a network operator to take measures to secure the network, such as a system for identification by means of a password. Facts of the main proceedings and the questions referred for a preliminary ruling Mr Mc Fadden runs a business selling and leasing lighting and sound systems. He operates an anonymous access to a wireless local area network free of charge in the vicinity of his business. In order to provide such internet access, Mr Mc Fadden uses the services of a telecommunications business. Access to that network was intentionally not protected in order to draw the attention of customers of near-by shops, of passers-by and of neighbours to his company. Around 4 September 2010, Mr Mc Fadden changed the name of his network from ‘mcfadden.de’ to ‘freiheitstattangst.de’ in reference to a demonstration in favour of the protection of personal data and against excessive State surveillance. At the same time, by means of the wireless local area network operated by Mr Mc Fadden, a musical work was made available on the internet free of charge to the general public without the consent of the rightholders. Mr Mc Fadden asserts that he did not commit the infringement alleged, but does not rule out the possibility that it was committed by one of the users of his network. Sony Music is the producer of the phonogram of that work. By letter of 29 October 2010, Sony Music gave formal notice to Mr Mc Fadden to respect its rights over the phonogram. Following the giving of formal notice, Mr Mc Fadden brought an action for a negative declaration (‘negative Feststellungsklage’) before the referring court. In reply, Sony Music made several counterclaims seeking to obtain from Mr Mc Fadden, first, payment of damages on the ground of his direct liability for the infringement of its rights over the phonogram, second, an injunction against the infringement of its rights on pain of a penalty and, third, reimbursement of the costs of giving formal notice and court costs. In a judgement of 16 January 2014, entered in default of Mr Mc Fadden’s appearance, the referring court dismissed Mr Mc Fadden’s action and upheld the counterclaims of Sony Music. Mr Mc Fadden appealed against that judgment on the ground that he is exempt from liability under the provisions of German law transposing Article 12(1) of Directive 2000/31. In the appeal, Sony Music claims that the referring court should uphold the judgment at first instance and, in the alternative, in the event that that court should not hold Mr Mc Fadden directly liable, order Mr Mc Fadden, in accordance with the case-law on the indirect liability (Störerhaftung) of wireless local area network operators, to pay damages for not having taken measures to protect his wireless local area network and for having thereby allowed third parties to infringe Sony Music’s rights. In the order for reference, the referring court states that it is inclined to regard the infringement of Sony Music’s rights as not having been committed by Mr Mc Fadden personally, but by an unknown user of his wireless local area network. However, the referring court is considering holding Mr Mc Fadden indirectly liable (Störerhaftung) for failing to have secured the network from which its rights were infringed anonymously. Nevertheless, the referring court wishes to know whether the exemption from liability laid down in Article 12(1) of Directive 2000/31, which has been transposed into German law by the first sentence of Paragraph 8(1) of the Law on electronic media, might preclude it from finding Mr Mc Fadden liable in any form. In those circumstances, the Landgericht München I (Regional Court, Munich I, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: Is the first half-sentence of Article 12(1) of Directive 2000/31, read in conjunction with Article 2(a) of that directive and Article 1(2) of Directive 98/34, to be interpreted as meaning that the expression “normally provided for remuneration” means that the national court must establish: whether the person specifically concerned, who claims the status of service provider, normally provides that specific service for remuneration, whether there are on the market any providers at all who provide that service or similar services for remuneration, or whether the majority of these or similar services are provided for remuneration? Is the first half-sentence of Article 12(1) of Directive 2000/31 to be interpreted as meaning that the expression “provision of access to a communication network” means that the only criterion for provision in conformity with the directive is that access to a communication network (for example, the internet) should be successfully provided? Is the first half-sentence of Article 12(1) of Directive 2000/31, read in conjunction with Article 2(b) of that directive, to be interpreted as meaning that, for the purposes of “anbieten” (“provision”) within the meaning of Article 2(b) [of that directive], it is sufficient for the Information Society service to be made available, that being, in this case, the making available of an open [wireless local area network] WLAN, or is “advertising”, for example, also necessary? Is the first half-sentence of Article 12(1) of Directive 2000/31 to be interpreted as meaning that the expression “not liable for the information transmitted” precludes as a matter of principle, or in any event in relation to a first established copyright infringement, any claims for injunctive relief, damages or the payment of the costs of giving formal notice or court costs which a person affected by a copyright infringement might make against the access provider? Is the first half-sentence of Article 12(1) of Directive 2000/31, read in conjunction with Article 12(3) of that directive, to be interpreted as meaning that the Member States may not permit a national court, in substantive proceedings, to make an order requiring an access provider to refrain in future from enabling third parties to make a particular copyright-protected work available for electronic retrieval from an online exchange platform via a specific internet connection? Is the first half-sentence of Article 12(1) of Directive 2000/31 to be interpreted as meaning that, in circumstances such as those in the main proceedings, the rule contained in Article 14(1)(b) of Directive 2000/31 is to be applied curia.europa.eu/juris/document/document.jsf?docid=183363&doclang=EN&mode=lst&occ=first 4/10