Swedish Supreme Court to rule on damages relating to online copyright infringement

In 2017 four Swedish men were sentenced by Linköping District Court [see here] to jail for their role in running and operating the following torrent websites: Dreamfilm, PirateHub, TFplay, and Tankafetast.


As also explained on TorrentFreak, the four sites initially generated millions of visitors thanks to users seeking to download movies, available on those websites, via bit-torrent clients such as Utorrent. Tfplay and Dreamfilm also offered users the possibility to stream the movies directly on that website. The sites were described as Europe’s leading players in file sharing and streaming by Swedish anti-piracy group Rights Alliance.

In early 2015, Dreamfilm announced it would shut down, following the arrest of one of its administrators. This generated a domino effect, with PirateHub, TFplay and Tankafetast shutting down as well.

The four individuals behind the sites were eventually convicted by the Linköping District Court and sentenced to 6 – 10 months in jail. In addition, the District Court also ordered them to pay approximately SEK 1 million to the claimants.

The defendants appealed the case to the Court of Appeal. They claimed that that, since the content available on the platforms was already available on other platforms, it had not been made available to a new public [on the new public criterion, see Svensson C-466/12]. However, the Court of Appeal dismissed the defendants’ claim and held that the works in question had been made available to a new public. As far as the samples presented in the case would allow, the men were found to have committed between 45 – 118 infringements of copyright law. In the eyes of the Court of Appeal, the defendants were motivated by profit [in a GS Media sense], which was proved by the fact that there was advertisement available on their platforms.

Since the defendants were relatively young, were not in the risk of recidivism, and had not been convicted for any offences prior to this case, the Court of Appeal ruled against the custodial sentences and instead quadrupled the damage award to approximately SEK 4 million [approx EUR 380,000]. The award was based on the cost of a hypothetical licence to distribute the works in question.


The Swedish Supreme Court

Two of the defendants appealed the case to the Swedish Supreme Court. They claimed, inter alia, that the damage award was unreasonable based on their respective incomes. The defendants argued that, since the calculation of damages has varied both in Swedish case law, and also, in this case, between the lower instance courts’, guidance by the Supreme Court is necessary to preserve the principle of sound administration of justice and ensuring predictability of judicial outcomes.

The Swedish Supreme Court granted the appeal and hearing will (hopefully) take place later this year.

In online copyright infringement cases, claims relating to damages are highly disputed, and in Sweden things have become particularly contentious. On the one hand there is case law using hypothetical licence fees as a basis to calculate damages. On the other hand, some support the idea that higher damage awards and harsher sentences for copyright infringements serve to deter future offenders from committing similar crimes online. But is this really true? What do readers think?
Swedish Supreme Court to rule on damages relating to online copyright infringement Swedish Supreme Court to rule on damages relating to online copyright infringement Reviewed by Nedim Malovic on Friday, September 07, 2018 Rating: 5

1 comment:

Andy said...

The usual disclaimer: I haven't read any of the Swedish courts judgments in this case and I know next to nothing about the Swedish legal system or its copyright laws.

But it seems to me that the terms 'damages' and 'fines' are being used interchangeably in a way that is confusing to anyone familar with the UK and several other European jurisdictions. Damages are generally not intended to be punitive (even if the EU Enforcement Directive (2004/48) seeks to promote the disuavive component of damages) and, again generally, damages are inteneded to restore to the claimant what they have lost due to the infringement. In criminal cases, fines are part of a punishment and are usually predetermined on a scale set down by legislators which a court then applies based on the aggrevating factors in the particular case and the circumstances of the defendants. Since fines are not paid to those who lose out financially because infringement, their losses should not, surely, be directly related to the amount of a fine. Of course if the court made some order for restitution, that would a different mattter, but that sum should not really be referred to as either a fine or damages. Since the second instance court varied the sentence by reducing the prison term and increasing the 'fine', I am assuming that there wasn't a restitution order per se.

It would seem that EU acquis will be of little help to the Swedish Supreme Court as the EU long ago abandoned a Directive covering the criminal side of intellectual property infringement. It's not clear if this latest appeal is also revisiting the Svensson / GS Media issue over libility for infringement.

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