Facts

The August and September issues of Téléchargement ("Download") magazine included several references that promoted software enabling illegal downloading, such as the following:

  • "Thanks to some keywords wisely found, you will be able to fill your hard drive with joy and good mood";
  • "Get your fill of divX and MP3... we will give you the addresses of the best peer-to-peer clients and will explain to you how to get plenty of files without getting upset"; and
  • "How to download even more pirated content".

The Société Civile des Producteurs Phonographiques, which collects and distributes the royalties for sound recording and music video producers, brought an action against the magazine's editor before the Nanterre Criminal High Court based on Article L335-2-1 of the IP Code.

Article L335-2-1 provides that the editing or communication to the public of software that allows access to works without the authors' permission, and the act of encouraging the public to use such software, is subject to a three-year prison sentence and a €300,000 fine.

The editor of Téléchargement claimed that on several occasions the magazine had reminded readers that piracy and downloading were illegal. In addition, since Paragraph 1 of Article L335-2-1 clearly targets software editors, the editor argued that Paragraph 2, which deals with the promotion of such software, also targets software editors only. Therefore, the issue for the court was whether Paragraph 2, which prohibits the act of encouraging the public to use downloaded software, should be limited to software editors or interpreted more broadly.

Decision

The Nanterre Criminal High Court held that Article L335-2-1 applied and sentenced the magazine's editor to pay a €10,000 fine, which was approximately the sum earned from sales of the offending issues.

Comment

The decision is interesting in several respects. First, it stated that Article L335-2-1 does not apply to software editors only. Second, this is the first time that a media organisation has been sentenced for encouraging readers to use software dedicated to illegal downloading. Finally, the freedoms of the press and of expression, as recognised by the Declaration of the Rights of Man and of the Citizen 1789, have constitutional value in France. As a result, media organisations regularly cite these principles in order to avoid any responsibility in respect of their publications. However, this argument was not made in this case and the Constitutional Council has given authors rights with constitutional value.

Ultimately, editors of magazines and newspapers – and any other medium, such as websites – must be aware that they can be fined and/or imprisoned for publishing material that encourages the use of software that facilitates illegal downloads.

For further information on this topic please contact Anne-Sophie Laborde at Nomos by telephone (+33 01 43 18 55 00) or email (alaborde@nomosparis.com). The Nomos website can be accessed at www.nomosparis.com.

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