Following the criminal conviction of the Pirate Bay defendants in April, rights-owners have been pursuing civil cases, including against ISPs, in an attempt to close down the Pirate Bay site.

As has been widely reported, on 17 April 2009, the founders of the file sharing site ‘The Pirate Bay’ were found guilty by the Stockholm District Court of secondary liability for copyright infringement. This case was initiated by the Swedish public prosecutor applying criminal law. The defendants were sentenced to one year in prison and were ordered to pay an amount of circa SEK 30 million (~EUR 2.7 million) in aggregate to US music and movie companies, whose action for damages was handled jointly with the criminal case. The verdict is under appeal.

Despite this outcome, the Pirate Bay site has been available without interruption and the infringing activity ongoing. Since the criminal verdict, the plaintiffs in The Pirate Bay civil case have filed a series of new civil law suits against three of the convicted Pirate bay founders (the fourth original defendant is not seen as connected to the site any longer), and, perhaps most interestingly, against two ISPs to The Pirate Bay, Black Internet AB and Portlane AB.

In these new civil cases, the plaintiffs are seeking injunctions against the owners to stop running the site and against the ISPs to cease providing services connecting the site to the internet.

E-Commerce Directive protection?

It might be thought that The Pirate Bay’s ISP would be protected from the legal measures aimed at The Pirate Bay by the so called “safe harbours” established by the E-Commerce Directive (2000/31/EC). These exempt certain defined activities such as “mere conduit” and “hosting”, provided certain criteria are fulfilled. However, these safe harbours offer protection only against criminal liability and damages. They do not prevent the grant of injunctions. As set out in, for instance, Recital 45 to the Directive, “[t]he limitations of the liability of intermediary service providers established…do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it.”

In the new cases, the plaintiffs have chosen to put forward solely a request for an injunction against the defendants and ISPs to cease contributing to the infringement of the plaintiff’s rights. They have not put forward any claim for monetary damages.

Knowledge is the key

Prior to the first Pirate Bay case, there were no established theories concerning secondary liability under Swedish copyright law (unlike e.g. under US copyright laws), though there was some isolated case law. The first Pirate Bay verdict rests on the application of criminal law. The District Court held that the founders of The Pirate Bay were guilty of secondary liability for copyright infringement: holding that they, by providing a website with well-developed search functions, easy upload- and storing capabilities as well as by conveying contacts between individual file sharers, had made it easier to commit these illegal acts and, thus, these illegal acts of others were deemed to have been illegally furthered by the activities of the defendants. The defendants were also found to have the necessary intent in relation to both their own actions (which was easy to establish) but also in relation to the main offences which they were found to have furthered. One key factor that was considered by the District Court in finding such intent was the defendants’ knowledge that copyright-protected material was available on the site.

The subsequent Pirate Bay cases rest on the application of civil law. Under the Swedish Copyright Act, an injunction may be issued against a person who commits an infringement or “contributes” to such act of infringement. The plaintiffs are requesting an injunction against The Pirate Bay’s ISPs, claiming that they are contributing to the infringements taking place by users of piratebay.org.

The causes of actions on which the plaintiffs’ cases are based differ slightly. The music companies, who were first to sue, argue that the actions of granting internet access and providing IP addresses, separately, are actions that “contribute” to the infringing activity on The Pirate Bay. The movie companies also target the granting of internet access as such, but their second cause of action is the physical hosting of The Pirate Bay’s servers carried out by one of the ISPs. The plaintiffs apply a cause and effect based reasoning, arguing that the services provided by the ISP are essential for The Pirate Bay being able to render its services, and thereby contribute to the infringing activity on the site.

However, providing e.g. internet access alone should not be sufficient for an intermediary to be held responsible, which is also conceded by the plaintiffs. Again, the key is knowledge. The music companies make reference to an example from the preparatory works of the Copyright Act indicating when secondary liability may be applicable. This is the case where an infringer has signed an agreement with an intermediary to use its servers, following which the intermediary comes across tangible indications that the server space is being used in a manner infringing protected copyright material. In light of this example, it is argued that that The Pirate Bay’s ISPs should be held liable since the ISP is aware of copyright protected material being transmitted within its services, or at the very least has been provided with tangible evidence that its services are used in a way that involves such infringement.

In these new cases, the ISPs had been notified of the infringing activity carried out by The Pirate Bay by the plaintiffs, so whether or not it should have monitored the activity is not an issue. When assessing similar situations, however, the E-Commerce Directive provisions concerning the prohibition on imposing general obligations on ISPs to monitor material should also be observed.

Black Internet

The Stockholm District Court has ruled in three of the cases, granting the injunction against Black Internet and two of the three natural persons in separate decisions but denying an injunction against Portlane AB.

The first ruling, on 21 August 2009, concerned only the ISP Black Internet, as the Court experienced difficulties serving notice of the proceedings against the natural persons. The second ruling was delivered on 28 October 2009. Both rulings enjoined the addressees against making available to the public certain musical and video works, as specified by the plaintiffs (some 700 music albums and 150 movies/TV-series), the ruling sanctioned by a SEK 500 000 fine. The Court dismissed claims regarding works listed on the site as available, but where the plaintiffs had not produced any evidence demonstrating that the listings were actually connected to protected works.

The Court based its rulings on the findings that:

  • Plaintiffs had demonstrated that they controlled the right to certain given works and that these works were being made available through The Pirate Bay site without permission;
  • Black Internet has been shown to provide internet access to The Pirate Bay;
  • The natural persons have been shown to continue to be involved in the operations of the Pirate Bay;
  • Black Internet has been well aware of the convictions against The Pirate Bay founders and that the site was continuing to operate in breach of the Copyright Act;
  • Through providing internet access to The Pirate Bay site, Black Internet is found to contribute to the copyright infringements of the site’s users in an objective sense.
  • The fact The Pirate Bay also has other suppliers of internet access, and that the termination of service by Black Internet would not cause the infringements to cease, is according the Court not relevant; and
  • In a weighing of interest, the interest of the rights-holders to halt the ongoing infringements is of greater weight than the inconveniences of an injunction is to Black Internet.
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The Appeal

The Stockholm District Courts rulings have been appealed. While Black Internet appears to have lacked professional counsel in the District Court proceedings, it has now retained counsel.

In a submission to the Appeals Court by Black Internet on 2 November 2009, Black Internet presents a number of interesting arguments why the ruling should be overturned. Among these, it may be noted that the preparatory works of the Copyright Act only discusses intermediary liability regarding the provision of storage services. Black Internet argues that it was only providing a transit service, with no hosting or storage facilities; and that the service provided is purely “mere conduit” which is exempted from liability.

While a provider of a storage server service can effectively block or disable the illegal dissemination of protected works, a provider of internet access can in reality only stop such dissemination by complete termination of service. Black Internet argues that such drastic intercession would in most cases appear disproportionate to the interests the action seeks to protect, in particular as the dissemination in fact is not effected at all. Instead, the injunction would severely restrict the rights to freedom of expression and to receive and impart information and ideas guaranteed in Article 10 of the European Convention on Human Rights according to Black Internet.

At the time of writing (17 December 2009), the Appeals Court had not issued a ruling.

Portlane

One set of plaintiffs from the earlier cases, a number of well-known Hollywood motion picture producers, filed suit on 29 October 2009 before the Stockholm District Court demanding an injunction against Portlane AB to cease contributing to the illegal copying and making available of certain specified movies and TV-series. The plaintiffs also request an information order, forcing Portlane to disclose the identity of the holder of certain IP addresses to which the domain openbittorrent.com refers.

According to the plaintiffs, Portlane provides internet access to “tracker services” reached through the domain openbittorrent.com. As of the summer of 2009, all torrent files at The Pirate Bay uses the address tracker.openbittorrent.com as the default tracker. The tracker function is a necessary part of the file sharing procedure used by The Pirate Bay.

The technical intricacies of the tracker functions provided by openbittorrent.com and used in conjunction by The Pirate Bay are too complicated to describe comprehensively in the space permitted here. It can also be noted that The Pirate Bay during November 2009 evolved its site to implement the use of “trackerless” Distributed Hash Table (DHT) technology. DHT has been described as a large ad-hoc network of peers passing on information requests about torrents without a central server, resulting in no control or single point of failure. No information about the contents or even the names of torrents are passed around, making this hard to shut down.

Portlane mounted a spirited defence before the Court, presenting arguments such as no evidence had been produced to show that the controversial tracker was not actually located in the United States or other such jurisdiction where the tracker service, according to Portlane, would be a legal service. Portlane also questioned whether the plaintiffs had satisfactorily demonstrated that they really held the rights allegedly infringed.

Injunction denied

While the Court was not convinced by these particular arguments, it did decide not to grant the injunction.

In its ruling on 1 December 2009, the Court stated that merely providing internet access is not enough for intermediary liability for contributory copyright infringement. The Plaintiffs had argued that Portlane was aware of the infringements being performed through the use of the tracker services. This knowledge requires the intermediary to take effective action.

The Court noted that since being notified of the illegal activities performed through the use of the tracker service, Portlane had taken action in the form of terminating a so-called peer-link to its customer and by requesting that The Pirate Bay cease to point to the tracker and that the tracker be removed as default address in The Pirate Bay’s torrent files.

While admitting that these measures had not been enough to halt the ongoing infringements of copyrights, Portlane had stated it could not do anything more except to terminate the internet access. The Plaintiffs argued that termination of access would be a reasonable and proportionate response where the tracker proprietor failed to inspect and clear torrent files to ensure respect of copyrights before adding such files to the tracker.

The Court found that such a demand would place a far-reaching liability on an internet access provider for what a tracker proprietor does or fails to do. Such liability could according to the Court not be deemed to follow from regulation in the Copyright Act of injunctions against contributory infringement of copyright, in which case the Plaintiffs have failed to demonstrate that Portlane has contributed to the infringement.

As the Portlane ruling appears to clash with the ruling by another judge at the same Court, the reach of ISP intermediary liability will remain unclear until the Court of Appeal and possibly the Supreme Court has ruled in these cases.