French Court Releases Internaute on Private Copying Clause

An internet user that had copied nearly 500 movies, burned them on CDs and shared them with his friends, has been released without charges by the French Court of Appeals of Montpellier yesterday. The news is brought by this posting on the site of the French Association of Audionautes, which helps internet users with their defense in copyright infringement cases. The title of their posting, "Movies Downloading Judged Legal In France", is optimistic and misleading. According to the Audionautes posting the Court stated that: "authors can't forbid copies or reproductions that are only intented for the private use of the copyist." Thus the user was released on the basis of the private copying clause as laid down in article L-122-5 of the French Intellectual Property Code (English version available here):

Once a work has been disclosed, the author may not prohibit: 2°. copies or reproductions reserved strictly for the private use of the copier and not intended for collective use (...)

This does not mean that the Court has judged that movie downloading is now legal in France on a general basis. Though I have not (yet) seen the judgment, it (probably) gives the indication that private use may be a defense against a claim of copyright infringement for downloading. While this might be called a recognition of the private copying clause in the digital environment, it is not clear if this will hold up. There are currently about 50 comparable criminal cases pending, and in the past users have been sentenced for these acts. It has to be seen if this decision will be followed in the future.

Towards DRMs the private copying clause does not do much good. An earlier French court decision made it clear that private copying should be regarded as a a defense and not a right Consequently it cannot be called upon against the rightsholder. If a user cannot make a copy the private use exception will not provide a legal tool to achieve this. The optimists of Audionautes might say that downloading now provides a legal alternative.

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Thru Furdlog
This is a cross-posting with the INDICARE Blog

Later: The eight page decision can be found here [PDF, French]. Thru Michael Geist's BNA Internet Law News.