First Swedish information orders case overturned on appeal

27 October 2009

Henrik Nilsson

Following the Swedish implementation in April of the Intellectual Property Rights Enforcement Directive, the Solna District Court issued Sweden’s first order requiring an ISP to disclose the identity of the user behind an IP address alleged to have been used for activities infringing copyright. However, this decision has now been overturned by the Svea Court of Appeals.

Section 53(c) of the Swedish Copyright Act gives holders of rights in copyrighted material the opportunity to request court information orders enabling discovery of the identities of unknown persons who are infringing their copyright. Click here for more details.

In order to obtain an information order, firstly, the rights holder must prove that a probable cause of copyright infringement has arisen and secondly, the courmust assess whether it is proportionate to grant the order balancing the right-holder’s interests in discovering the identity of the unknown party against the inconvenience or harm that could be caused to the unknown party.

The case was brought to court by five Swedish publishing companies who were the rights holders of a number of audio books. The requested information order was directed at the Swedish internet service provider ePhone, the trading name of Perfect Communication Sweden AB, and was sought to obtain the name and address of an internet subscriber using a specific internet protocol (IP) address provided by ePhone. The publishing companies provided evidence, obtained with the assistance of the Anti-Piracy Bureau (a Swedish rights holders association), which indicated that the internet subscriber using the IP address in question infringed several copyright protected materials by providing a file transfer protocol (FTP) server from where audiobooks could be downloaded. It is worth noting that the FTP server could only be accessed with a user name and password.

The publishing companies requested that the District Court should order ePhone to provide them with the specific IP address provided by ePhone, and in the event that they did not the court should issue them with a penalty fine. The companies demonstrated that they had exclusive rights to the audio books and the right to take legal action. They argued that they had shown probable cause that copyright has been infringed and that the audio books referred to had been accessible to more than a completely private community. The companies further argued that their interests in requesting an information order outweighed the opposing interest of the internet subscriber.

ePhone contested the requested information order arguing that: (1)  an individual’s fundamental right to privacy should be respected; (2) the publishing companies had not shown probable cause of a copyright infringement; (3) the publishing companies’ interest in receiving an information order did not outweigh the inconvenience or the harm that ePhone’s internet subscriber will be exposed to; and (4) the publishing companies had failed to show that the general public could obtain logon information in order to access the FTP server. Therefore, the internet subscriber had not made the audio books accessible to the general public. Furthermore, ePhone highlighted that the publishing companies had failed to state how they were able to access the FTP server and how they acquired the necessary logon information. 

The District Court stated that the publishing companies had the right to take legal action but discussed whether the regulation of information orders is in accordance with the right to privacy in Article 8 of the Human Rights Act 1998 and in harmony with EC law. The court held that the EC data protection regulations do not prevent Member States from implementing a regulation similar to the Swedish IPRED law and therefore ePhone had no valid reason for its objection that section 53(c) of the Act did not apply.

The District Court further addressed the question of whether or not there was a probable cause of a copyright infringement; primarily, were the audio books made available to the general public through the FTP server. The court noted that the Anti-Piracy Bureau was able to access the FTP server, but did not address the question of how this had been achieved. It should be noted that an infringement of the right-holder’s exclusive right to distribute the material cannot occur if the material is only made accessible within a completely private community. The court pointed out that the use of logon information naturally diminishes the amount of people that will be able to access the FTP server, but does not in itself make the FTP server a completely private community. The investigation conducted by the publishing companies showed that the FTP server contained a large amount of audio books which, according to the court, implied that the server had a lot of “users” with access to logon information. The District Court furthermore argued that the information order is a type of pre-judicial instrument. Therefore, the standard of evidence, that copyright protected material is made accessible for the general public, can be lowered. By this reasoning, the District Court found probable cause that the audio books on the FTP server were made accessible to the general public.

Lastly, the District Court ruled that the reasons for an information order in this specific situation are to compensate for the harm or inconvenience the action causes the opposite party. In view of the above, the District Court accepted the publishing companies’ claim and issued an information order.

Appeal of the final order to the Court of Appeal and ruling

The District Court’s final order was appealed by ePhone to the Svea Court of Appeal. In its appeal, ePhone focused on the District Court’s failure to address the question of to what extent people were able to log on to the FTP server. As a user name and a password are required to access the server, ePhone argued that the Court of Appeal should regard the FTP server as a closed community and therefore the publishing companies should bring forward evidence that supports public accessibility.

The Court of Appeals overturned the District Court’s decision in a ruling announced on 13 October 2009. The Court stated that circumstances such as the presence of thousands of audio books of the bestseller variety appeared to indicate that the group of people with access to the server consisted of “more than a few” persons. However, as no evidence had been presented to demonstrate what was required to gain access to the server, the Court declared it was unable to draw any conclusions on the size, motivations, characteristics, duration and membership requirements regarding the group of people with access to the server. Against this background, the existing evidence was compatible with a presumption that the audio books had only been made available to a private community and not to the public.

It is not clear at the time of writing whether the ruling will be appealed. Audio publisher industry groups have commented that other cases will pursued.