For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

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Wednesday, 13 March 2013

European Court of Human Rights decides the Pirate Bay case

Following last year's refusal of the Swedish Supreme Court to hear the Pirate Bay's final appeal, in May 2012 the counsel for one of the founders of the infamous bittorrent tracker (Fredrik Neij) announced his client's intention to bring the Pirate Bay case before the European Court of Human Rights (ECHR), claiming that his client's freedom to receive and impart information – pursuant to Article 10 of the European Convention of Human Rights – had been violated, since the Pirate Bay's services, including the transfer of non-proprietary information among users through an automated online process, were protected under this provision. 

Today the ECHR released its final decision in Neij and Sunde Kolmisoppi v Sweden, in which it unanimously held that Pirate bay co-founders' criminal conviction for assisting copyright infringement on the internet was justified. 

As explained in the press release,
"The Court reiterated that Article 10 guaranteed the right for everyone to receive and disseminate information on the Internet. Although the aim pursued by Mr Neij and Mr Sunde  Kolmisoppi [fellow Pirate Bay co-founder] was profit-making, their involvement in a website facilitating the exchange of copyright-protected material was covered by the right under Article 10 to “receive and impart information”. As a result, their conviction had interfered with their right to freedom of expression. 
However, since the shared material in respect of which Mr Neij and Mr Sunde Kolmisoppi had been convicted was protected under the Copyright Act, the Court held that the interference of the Swedish authorities had been prescribed by law. It also considered that the conviction of Mr Neij and Mr Sunde Kolmisoppi had pursued the legitimate aim of protecting copyright. Finally, the Court had to balance two competing interests which were both protected by the Convention – i.e. the right of Mr Neij and Mr Sunde Kolmisoppi to facilitate the exchange of information on the Internet and that of the copyright-holders to be protected against copyright infringement. 
Beatrice and her friends had never thought
of freedom to receive and disseminate
information as involving anything
but gossip exchange over a cup of tea
The Court reiterated that the Swedish authorities had a wide margin of appreciation to decide on such matters – especially since the information at stake was not given the same level of protection as political expression and debate – and that their obligation to protect copyright under both the Copyright Act and the Convention had constituted a weighty reason for the restriction of the applicants’ freedom of expression. Moreover, considering that Mr Neij and Mr Sunde Kolmisoppi had not removed the copyright- protected material from their website despite having been requested to do so, the prison sentence and award of damages could not be regarded as disproportionate. 
Therefore, the Court concluded that the interference with the right to freedom of expression of Mr Neij and Mr Sunde Kolmisoppi had been necessary in a democratic society and that their application had therefore to be rejected as manifestly ill-founded."
This Kat agrees with the decision of the Court and thinks that it would have been highly unlikely to achieve a different outcome, but what do IPKat readers think?

5 comments:

Sav Szymura said...

A better question to ask is what is the media equivalent of distributing content via BitTorrent?

It's essentially free marketing.

Andrew Robinson said...

Surely for a punishment to be necessary, it also has to be effective?

This conviction achieved nothing of any use to the copyright industry. The Pirate Bay is still up and running, not one file has been removed from it and the defendants are now considered martyrs by a significant portion of the file sharing public. I find it hard to follow the court's logic that this punishment was necessary, as it has failed to achieve anything.

KTetch Dureek said...

And what the court ignored was the significant issues in the conviction, or that they're accused of not following US laws, in Sweden.

And I'll quote Mike Masnick here

"The court seems heavily influenced by the fact that TPB did not remove torrents when asked to do so, despite no law requiring such actions. Furthermore, that sets a bizarre and dangerous precedent that just because someone "urges" you to remove content from an internet website or service, that you must do so or be held liable for it.
The part that troubles me most, however, is that the court more or less completely sidesteps the questions of secondary liability. While it mentions, a few times, that both Sunde and Neij have pointed out that TPB was just the service provider, and any actual infringement was done by users, it never properly addresses this issue, other than to suggest that secondary liability is perfectly reasonable. For those of us who have studied just how important protections for secondary liability are in promoting innovation, this suggests a very dangerous precedent for innovation in Europe.


Says it all much better than I. Of course, I kinda have a dog in the fight too, as I released my first book on TPB a year ago (ebook free, paperback $9.99)

Sonia Surma said...

I really welcome The Court's decision because the copyright protection on the Internet is really hard today.
Copyright works form a specific kind of the 'information' within the meaning of the article 10 of the European Convention of Human Rights. The article 10 is in my opinion aimed especially at the 'information' such as publicly available infomration e.g. news or info that do not include rights of the author (in the part of receiving and imparting the information).
Author's protection on the Internet is mostly not feasible due to the world wide web's character. This decision against the favourite torrent-based file sharing does not solve the real problem of a cyberpiracy but at least warns copyright infringers that they are under the scrutiny of the society today and cannot hide themselves under the freedom of expression. Of course,copyright works can be shared via torrent files many many times and such a distribution would not fall under any legal exception of any copyright act in the Europe.
The decision caused the Pirate Bay's co-founders to move their activities to other countries than Sweden, but also in these other countries - e.g. in Ireland the proceedings were initiated against this type of business activities. However, Internet users are inventive and free to use a lot of other means of files-sharing. The Cyberpiracy remains an unsolved issue but at least has become one of the most discussed issues in Europe.

neroden@gmail said...

Copyright as it was in the year 2000 is dead, and the courts just haven't noticed it yet.

At the moment, copyright lawsuits are primarily used as a form of harassment, not for legitimate purposes, and this phenomenon has to be recognized sooner or later.

Apparently this was not the week.

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