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?