Swedish Courts impose strictest penalty ever on illegal file sharing

17 July 2008

Catrin Agerhäll, Jesper Lindfors

Traditionally, the penalty for illegal file sharing has been fines in Sweden. However, in the first case of its kind, a Swedish District Court has issued a more severe penalty; sentencing an illegal file sharer to a suspended prison sentence.

Although the Court did not consider that the offence warranted a prison sentence, this decision may prove to be significant. It may encourage more actions to be brought, and could make it easier for investigating authorities to require ISPs to disclose information about the names of those behind IP addresses.

In previous file sharing cases, the Swedish Courts have issued fines to those found to be in breach of the law. However, for the first time in an illegal file sharing case, a Swedish District Court has ruled that a fine was not a sufficient sanction. Instead, the file sharer received a suspended sentence and had to pay 40 fine units. This decision was reached in light of the number of films and songs involved. The filesharer had made at least 30 movies and 4592 music files available for downloading on the internet. The injured parties were represented by the Swedish members of the International Federation of the Phonographic Industry, IFPI, and by Sweden’s Anti-Piracy Agency.

The Linköping District Court in south central Sweden issued this much noted judgment on 5 May 2008. Due to the large amount of evidence collected regarding the movies and music files made available, the police were able to request information from the ISP about the subscriber behind the IP address. Due to a duty of confidentiality, ISPs can only reveal information about subscribers in special circumstances. ISPs are only allowed to disclose this information to the police if the penalty prescribed for the offence includes imprisonment. Additionally, the investigating authority involved must consider that the offence would be serious enough to warrant a sanction other than a fine.

In this case, the Anti-Piracy Agency had provided evidence showing that the defendant’s user name was connected to hub through the file sharing program Direct Connect. Evidence also showed that films and music had been made available via the defendant’s IP address, from which the Anti-Piracy Agency had successfully been able to download illegal files. Confiscated hard drives from the defendant’s computer and expert testimony confirmed the information given by the Agency.

The Court’s view was that the evidence demonstrated sufficiently that the IP address in question was associated to the router which was connected to the defendant’s computer. The evidence also established that the IP address had been used for illegal activity at several points in time.

In his defence, the defendant asserted that other individuals had used his computer and equipment. The Court, however, paid no regard to this, on the grounds that the defendant had not elaborated on these statements, or mentioned this earlier during police questioning. The Court ruled that it was sufficiently proven that the IP address belonged to, or was at the disposal of, the defendant and that it was beyond reasonable doubt that the defendant had used his computer equipment during the time frame set forth by the Anti-Piracy Agency.

Due to the large amount of shared movies and music files in the case, the Court had to decide if the crime was of a sufficiently serious nature to warrant imprisonment. The Court acknowledged the difficulties regarding illegal file sharing in today’s society, and stated that reducing widespread illegal activities was primarily a task for the government to solve by legislation or by other means. The court also considered that the film and music industries had a responsibility to reduce illegal file sharing by preventative measures. As a consequence, the level of culpability was not considered high enough to warrant imprisonment.

IFPI, in a statement on the case, expressed its view that this was a very significant case. They argued that it shows that file sharing is a serious crime which can lead to sanctions other than fines. The statement implies that IFPI will proceed with further legal action.

The decision may also facilitate the process of receiving information about subscribers from the ISPs in criminal investigations. This case has shown that this type of offence can lead to sanctions other than fines. Further, stronger opportunities to receive identifying information, combined with the more severe sanction delivered, might also open up for more orders authorising search of premises where there are suspicions of similar criminal actions in the future.

However, although important as a matter of principle, it is not clear whether the judgment will deter file sharers from infringing copyright in the future. The file sharing program used in this particular case was Direct Connect, which is considered by many to be outdated. Today, file sharing programs like BitTorrent are more frequently used, for example via the notorious Swedish website Pirate Bay. While file sharers using Direct Connect make whole songs and films available for downloading, the BitTorrent technique only makes small fragments of the protected work available, making it difficult or even impossible to show which user shares which file. Consequently, it will also be hard to prove that a user makes large amounts of entire productions available to the public.