Swedish court considers new blocking injunction against The Pirate Bay and other torrent sites

The Swedish Patents and Market Court (the specialist IP court in this country since 2016) has been recently requested to issue an injunction against Swedish internet access provider Telia to block access to torrent sites The Pirate Bay, Dreamfilm, Nyafilmer, Fmovies, and several other related proxies and mirror sites.  

Not completely unfamiliar to readers, The Pirate Bay and several of the sites at issue give access to works protected by copyright through links to Torrent sites (eg, The Pirate Bay) or allow users to upload and make available those works, without the rightholders’ consent.

The rightholders in this case (Disney, Universal Studios, Warner Bros, and several others) have brought a joint action, claiming that Telia – by supplying internet connection to its own customers (thus enabling access to the sites at issue) – is aiding and abetting (objectively) infringements of copyrights belonging to the claimants.

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

This is not the first application for a blocking injunction to be issued against an internet access provider in Sweden [se for example here]. However, unlike the past, the approach is different this time and can be compared to the one used by Dutch anti-piracy group BREIN in the case that eventually was referred to the Court of Justice of the European Union (CJEU) as C-610/15 (Stichting Brein v Ziggo BV) in that BREIN requested the blocking injunction to be issued before a decision on the merit was issued.

With support of domestic and CJEU case law such as C-160/15 (GS Media), Ziggo BV, C-494/15 (Tommy Hilftiger) and others, the rightholders have submitted that without being able to request courts in Sweden to issue a blocking injunction without a judgment on the merit –they would have to burden the legal system with repeated blocking requests if and when the operators behind the illegal services change domain names. Hence, in order to evade a potential blocking injunction by changing the domain names, as for example The Pirate Bay did, the rightholders wish to make sure that Telia blocks all access to the pirate sites regardless of the URL.

Telia has yet to respond to the writ of summons and it will be interesting to follow this case further to see whether Swedish courts are prepared to follow the CJEU approach in light of the decision in Ziggo BV. In the first blocking injunction granted in Sweden [here] it was held that EU law intends to provider rightsholders with a high level of protection, also by enabling national courts to issue injunctions against intermediaries whose services are used by third parties to commit infringements.

In light of Swedish law, in particular Article 53 b (first sentence thereof) of the Copyright Act “[A] petition by the author or his or her successor in title or by a party that, on the basis of a license, has the right to exploit the work, [a] Court may issue an injunction prohibiting, on penalty of a fine, a party that commits, or contributes to, an act constituting an infringement or a violation referred to in Article 53 to continue that act.” It is therefore safe to assume that a blocking injunction on the basis of a preliminary decision might already be available for the rightholders in question.