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Friday, 4 March 2016

Stockholm District Court refuses to issue blocking injunction against access provider

No block for Klas 
In a recent judgment [briefly commented by IPKat here], the Stockholm District Court rejected an application to issue an injunction against Swedish internet access provider ‘Bredbandsbolaget’ (B2) to block access to torrent sites The Pirate Bay and Swefilmer [no links provided in this case ...].

Not completely unfamiliar to the audience [possibly], The Pirate Bay contains works protected by copyright and allows users to upload and make available those works, without the rightholders’ consent [for a recent take on Pirate Bay users, see here]. This was also the case with Swefilmer, which was closed down in July 2015.

The rightholders in this case (Universal Music, Sony Music Entertainment, Warner Music, Nordisk Film, and others) brought a joint action, claiming that B2 - by supplying internet connection to its own customers (thus enabling access to The Pirate Bay and Swefilmer) - was aiding and abetting (objectively) infringements of copyrights belonging to the claimants.  

The rightholders requested the District Court, in accordance with §53B (first sentence thereof) of the Swedish Act on Copyright in Literary and ArtisticWorks (1960:729) (the Copyright Act) – on the basis of a penalty or a fine – to order B2 to block access to these websites.

B2 argued, inter alia, that it had no role in third party-infringements. In this context, the parties were also in dispute over the meaning and scope of Article 8(3) of the InfoSoc Directive as implemented into Swedish law. In particular (as readers will promptly recall), this provision states that Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.

Having held that without doubt the websites at hand, ie The Pirate bay and Swefilmer, would favour the unlawful availability and transmission of copyright works, the court considered whether an injunction could be issued against B2. 

More specifically, to this end what needed to be determined was whether B2 could be regarded as having aided and abetted such infringements.


Guilt is a requisite for the Swedish court
The court first addressed whether B2 had knowledge of third party-infringements, and concluded that, although a definite determination was not possible, B2 might have expected that some users would use its service to infringe copyright and/or access infringing content.

The Court then considered Swedish implementation of Article 8(3) of the InfoSoc Directive. It noted how this Member State decided not to use the same language of Article 8(3) [this is also what the UK did with s97A of the Copyright, Designs and Patents Act] but rather phrase §53 in the sense of allowing injunction to be granted against those who commit copyright infringements and those who aid and abet such infringements. The latter, according to the Court, should be intended in the same sense as any other criminal offence, ie that what needs to be demonstrated is that the defendant did so through action or other active conduct. As such, to obtain an injunction against an online intermediary it is not sufficient that this merely provides access to the internet without also providing some sort of direct assistance to the primary infringers.

At the time of implementing the InfoSoc Directive, Swedish Government did not deem it necessary – to comply with Recital 59 and Article 8(3) of the InfoSoc Directive – to prescribe the availability of injunctions independently from a subjective element requirement. This is because, at the time of implementation of the InfoSoc Directive, the national provisions in force already provided the opportunity to direct a prohibition on penalty of a fine against ISPs.

The Court rejected the applicants’ submission that Swedish law is incompatible with EU law, and also dismissed that the decision of the Court of Justice of the European Union in Telekabel [here, a decision that confirmed that blocking injunctions are compatible with EU law] could have any relevance to adjudicating the present case. Overall nothing in Article 8(3) would appear to prevent Member States from imposing additional conditions for injunctions to be granted. This said, the Court also stated that the conditions under Swedish law must not be interpreted in such a way that the real possibility for rightholders to obtain an injunction becomes merely illusory. 

An appeal is likely to follow, so let's see what happens!

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