The saga behind the decision I am
going to report on first started in April 2015, when prosecutor Fredrik Ingblad
directed claims against Fredrik Neij (one of the creators of The Pirate Bay) in
an effort to disrupt the operation of The Pirate Bay website in Sweden.
Ingblad also filed a complaint against Punkt SE (IIS), the organisation
responsible for Sweden’s .se top-level domain. Mr Ingblad argued that the
domains ‘ThePirateBay.se’ and ‘PirateBay.se’ were used as “tools” to aid and
abet copyright infringement and should therefore be seized by the Swedish state.
Section 53 a § of the Swedish Copyright
Act (SCA) states that property used or being used for crimes regulated in
the SCA may be seized to prevent further crimes. The same applies to property
that is intended for use as a tool in connection with such activities.
The Stockholm District Court (2015) and the Court of Appeal (2016) had found
that domain names must be viewed as a form of property and are therefore
eligible to fall under the SCA.
Since the domain names were used as identifiers
of the well-known sharing service The Pirate Bay, both courts had held that the
domain names should be subject to forfeiture and thus transferred to the
Swedish State.
Importantly, since the domain names are considered a type of property, the owner of that property – being Mr Neij - is
responsible for the activity over its services.
ISS was not regarded as the domain name proprietor because it only
exercised an administrative function over the domain names (organising the
database, taking out fees etc.), as opposed to having an exclusive right over
it.
|
Prosecutor Fredrik Ingblad |
Fredrik Neij appealed the Court of Appeal decision to the Swedish Supreme
Court, arguing that the domain names do not constitute property under Section 53 a § of the SCA.
The judgment of the
Swedish Supreme Court
Last month the Swedish Supreme Court confirmed that the two domains can
indeed be seized by the state. The (relatively short) judgment essentially tackles
two main issues:
(1) Whether the domain names constitute a form of property
in light of Section 53 a § SCA
Domain names are not really regulated under Swedish law and the
available framework is primarily of international nature. That being said, in
order to determine whether domain names are a form of property, the Supreme
Court sought guidance from jurisdictions such as Norway, Denmark and case law
of the European Court of Human Rights. Concluding that these courts have opined
in favour of seizure of domain names, the Supreme Court held that:
· the
possession of a domain name can be of monetary value for the proprietor;
·
it entails an exclusive right by being having the
option of transferring it; and
· in some
respects, it fulfils a function similar to that of a trade mark.
It was therefore clear that domain names should be recognised as a form
of property.
(2) Whether domain names can be used to aid and abet
copyright infringement
Under Section 53 a § SCA, property used to aid and abet crimes against
the SCA may be forfeited to prevent further crimes. Following on the previous
point, the Supreme Court held that domain names can be indeed used to aid and
abet the commission of crimes, and it is not required that the tools used to
this end are of any particular type.
A more robust set of
enforcement tools in Swedish IP cases
This case is relevant because it confirms the possibility of forfeiture
of domain names. It also provides rightholders with an additional possibility
to counter the struggle against widespread online copyright infringement. Readers
may in fact remember that not
long time ago the Swedish Patent
and Market Court of Appeal issued the first blocking injunction in the Swedish
context, ordering a
major ISPs to block access to The Pirate Bay.
Overall, different tools seem now available to rightholders wishing to
enforce their rights in this jurisdiction. As regards the efficacy of the
various options, it is worth recalling the assessment undertaken by Mr Justice
Arnold in his decision in Cartier [here], who considered that there might be scenarios in
which domain name seizure might have some value while blocking orders remain
probably the most efficient measure.
Err did he provide you with that picture or is that how Swedish prosecutors dress?
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