The much-debated C&D letters to private individuals have been a hot topic from a legal perspective, whether one considers the letters as being intimidating and disproportionate threats or a necessary battle for copyrights. The Copenhagen City Court’s case law regarding the several hundred cases of illegal download and filesharing have not been clear and cogent, but the majority of the cases were ruled in favour of the plaintiffs and copyright holders. This course may be changed with the recent decision from the Copenhagen City Court and the pending appeals before the Eastern High Court.
With the many popular options for streaming movies and music, one would believe that the days of PirateBay and illegal downloading were over. That is assumingly also the direction we are moving towards, but that does not stop the copyright holders from taking legal action against internet subscribers who allegedly have been downloading and sharing copyright protected material illegally through their internet and associated IP- addresses.
Numerous individuals have received a C&D letter from one of the active law firms on behalf of one of the entities, who are enforcing the rightsholder’s copyrights in many countries, including Denmark. The letters include a proposal to settle the matter upon paying a given amount. One of the involved law firms has previously stated that potentially 150.000 letters have been sent based on the number of IP-addresses and the information that the tele companies have handed over. Same law firm has also stated that about 60 percent of the recipients have settled and paid the imposed amount. The recipients who refuse to pay, as they refuse to have conducted any illegal downloading and file sharing, will be the object of a civil lawsuit.
Rule of Presumption
The copyright holder’s claims are based upon data from a computer programme that is able to track illegal downloading and file sharing, time of download and the associated IP-address. When combining the IP-address with the information from the telecommunication companies, it is possible to identify the subscriber of the internet connection. Based on this information, the right holders claim that in Danish law a strong rule of presumption must apply, after which the violation must be presumed to be committed by the owner of the IP-address, if he or she has an access code on their internet connection.
In absence of any solid evidence of the defendants IP- addresses being hacked, misused or similar, the rule of presumption has been decisive for the numerous rulings from the city courts, especially rulings from the city courts in Eastern Denmark. This means that most of the rulings have been in favour of the plaintiff and the copyright holders.
Most recent ruling and pending, preliminary appeals
The latest ruling from the Copenhagen City Court changes the course just before the Eastern High Court has decided on the matter. The Copenhagen City Court ruled that, even though there may exist a presumption that the violation was committed by the internet subscriber and that the subscriber therefore is liable for the violation, the defendant was able to prove such specific circumstances, which with a high degree of probability precludes the possibility of the defendant being at home on his address, or through his computer downloading and file sharing the movie while not being at home. Through the defendant’s own explanation before the court and submitted bank statements, the defendant was able to render unlikely and thus overcome the presumption that he himself had committed the violation on the specific time the movie was downloaded from his IP-address. It is essential to note that the defendant could not prove with certainty that he was not at home on the specific time the violation assumingly had taken place, but he could render likely with a high degree of probability that he was not at home, when the movie was downloaded and file shared. The bank statements showed that the defendant had used his payment card about 160 kilometres from his home at 7:59 PM, Thereby, the court rendered that the defendant was not home, when the movie was downloaded from his IP-address at 6:39 PM.
The ruling does not set aside the rule of presumption, known from several similar cases, but it does modify it and show that the rule of presumption can in fact be overcome – even without certain proof. Consequently, this latest case appears to take a more nuanced view on the issue and the burden of proof in such cases.
Presently, the many city court cases have been put on hold while waiting for the rulings of the Eastern High Court. Four judgements that were ruled in favour of the copyright holders have been appealed. The appeals are scheduled in March 2020, but one of them has already been settled, leaving only three preliminary cases to be decided by the Eastern High Court.
Accura’s dedicated team of intellectual property lawyers will follow this matter closely and keep us up to date with the three pending preliminary rulings from the Eastern High Court.