The Supreme Court in Sweden recently decided a case on the legal status of links to unauthorized MP3 (1) files.
The defendant provided links on his web site which led to MP3 files placed on servers throughout the world. The links were published without the authorized consent of the copyright holders. The case was finally tried by the Swedish Supreme Court.
According to the Swedish copyright legislation, a copyright holder has the exclusive right to make copyright protected material available to the public. There is, however, an exception that applies to sound recordings. Pursuant to the exception, sound recordings can be publicly performed without the permission of the copyright holder, provided that the producer of the sound recording is granted monetary compensation for the use of the material. The Supreme Court held that no copyright infringement had been committed since the linking was deemed a public performance. Since the plaintiff was the record producer, this act was not an infringement of any copyright, but would only lead to an obligation to pay compensation to the record company.
However, for the holder of the actual copyright, public performance falls under the rightholder's exclusive rights. Even if the Supreme Court had never rendered a formal decision, the decision is interpreted to imply that that linking - at least by means of 'deep links' - is considered to be public performance and thus an infringement of the copyright holder's exclusive rights. A 'deep link' is a link where the user, by clicking on the link, automatically downloads a file from server other than the server originally accessed. The court decision gives no guidance as to liability for normal hypertext links or linking by means of framing.
For further information on this topic please contact Agne Lindberg at Advokatfirman Delphi & Co by telephone (+46 8 677 54 00) or by fax (+46 8 20 18 84) or by e-mail ([email protected]).
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