Odysseus between Scylla and Charybdis? The ECJ rules in L'Oreal v eBay

Sketching the outline of a ghost: the fair balance between copyright and fundamental rights in intermediary third party liability

“…This would satisfy the balance between too lax and too aggressive an enforcement of intellectual property rights -between, to use the simile made by the AG, the Scylla of allowing the rampant infringement of copyright and the Charybdis of infringing the rights of users and intermediaries [51]. Courts must tread carefully however, as even this suggestion is not without its problems: depending on whether the words "perpetrator" and "infringing third party" here are understood to refer to the actual person committing the infringement or simply the account they happen to hold while executing it, the measure may go beyond mere blocking and require filtering software that could at least run afoul of Article 15 of the E-Commerce Directive (Clark and Schubert, 2011). It is interesting that the wording in the AG's Opinion ("closing the client account of the user") and that of the Court ("suspend the perpetrator") suggest different conclusions.…”