Swedish Court orders ISP to block access to The Pirate Bay and other Torrent sites

Earlier this year, the Swedish Patent and Market Court was requested to issue an injunction against Swedish internet service provider Telia Company (Telia) to block access to the likes of The Pirate Bay, Dreamfilm, Nyafilmer, Fmovies, and several other related proxies and mirror sites [here].

Following the application, the Patent and Market Court ordered Telia - by way of an interim ruling – to block access to the above-mentioned sites. The blocking order would come into effect by the end of this month.

Several of the sites at issue give access to works protected by copyright either through links to torrent sites (eg, The Pirate Bay) or by enabling users to upload/download and make available those works without the consent of relevant rightholders.

Section 53B (first sentence thereof) of the Swedish Act on Copyright in Literary and Artistic Works (1960:729) (SCA) states that, upon application by a rightholder, a court may issue an injunction prohibiting, on a penalty of a fine, a party that commits or contributes to, an act constituting an infringement. For the Court to find to issue such an injunction the applicant must show that there is probable cause that an infringement has occurred, that the value of the exclusive rights has been impaired, and that the injunction would be proportionate on consideration of the interests’ of both parties.

The application

In this case, the rightholders (Twentieth Century Fox, Columbia Pictures, Warner Bros, Paramount Pictures, and others) brought a joint action in which they claim that Telia – by supplying internet connection to its customers (hence, enabling access to the sites at issue) – would aid and abet (objectively) infringements of the copyrights belonging to them. By supplying such internet connection, Telia would also contribute to impairing the value of the copyrights in question. The injunction would be proportionate bearing in mind the interests of the rightholders in protecting their intellectual property, on the hand, and Telia’s interest in pursuing its business activities limitlessly, as well as freedom of information and freedom to conduct one’s own business on the other hand.

Telia’s response

Telia, however, submitted that the case at hand raises complex legal issues. Hence, it would not be appropriate to decide on such issues through an interim ruling. In any case, it stated that the questions in the present case are of a technically complex nature and it is not clear how the current streaming services actually work, nor have the rightholders proved that it is likely that the content has been made available to a new public.

Regarding its own alleged contributory liability, Telia specified that there must be an infringement from an objective standpoint, and according to the preparatory works to the SCA it appears that merely supplying access (by means of an internet connection) does not amount to an infringement. Nonetheless, a blocking injunction would not be proportionate because it would inter alia compress Telia’s freedom to pursue its own business activities, users’ right to impart or receive information (freedom of information), and ownership of domain names that do not lead to any of the allegedly infringing services.

The Patent and Market Court’s decision

1. Probable cause for the infringement

Following a preliminary assessment of the evidence submitted, the Patent and Market Court found that the content had been made available to the public in the manner described by the rightholders. The applicants – through a report submitted by Motion Pictures Association (MPA) – also made it sufficiently clear that they had exclusive rights to the content at hand.

2. Making works available to the public

According to the preparatory works to Section 2 SCA, this provision encompasses all sorts of distance transfers of works protected by copyright, including through internet and other on-demand services. A work must not be available continuously for a transfer to take occur: on the contrary, a work has been made available as soon as it has been made possible to access at some point during the specified period.

Furthermore, the making available right has been harmonised in the EU in accordance with Article 3(1) of Directive 2001/29/EC (the InfoSoc Directive).

Referring to the decisions of the Court of Justice of the European Union (CJEU) in C-160/15 (GS Media) and  C-610/15 (Ziggo BV), the Patent and Market Court stated that a person who has known or ought to have known that the hyperlink used in order to access content, without the consent of the rightholder, would infringe the rightsholder’s exclusive making available right. In this context, it was also clear that administrators of a service that make content available to their users, without the consent of the rightholders, play a necessary role by enabling access to the content in question.

According to court, it is therefore likely that the works had been made available to the public by being transferred through the ISP’s services. By providing internet connection to its subscribers, the content would have been made freely available to anyone that wished to access it and it is also likely that is would be directed to a new public without the consent of the rightholders.

3. The ISP’s contributory liability

The Patent and Market Court then went on to state that CJEU case law has clarified that it is possible for rightholders to seek a blocking order against an ISP in light of Article 8(3) of the InfoSoc Directive. This is so even if the ISP merely supplies the internet connection used to commit the infringements.

The court also stated that Section 53b of the SCA is a civil and not a criminal provision. Nonetheless, the legislative text should be interpreted in light of EU law. When it comes to the interference with fundamental rights it has also been established that blocking orders are compatible with such rights (C-314/12 (UPC Telekabel)). In this regard, there is not a requirement of a contributory criminal act (in an objective sense) for it to be possible to have a blocking order issued in accordance with Section 53b of the SCA.

4. Proportionality

As regards to proportionality the rightholders submitted evidence that it is likely that those websites generate revenue for their operators. The business idea is monetizing on copyright content made available without the consent of rightholders. Against this background, a blocking order would therefore not appear disproportionate in light of the fundamental freedoms invoked by Telia.

What’s next?

Earlier this week Telia announced that it would appeal the interim ruling to the Patent and Market Court of Appeal. Whether the appeal will be granted remains to be seen.

Patrik Hiselius, Senior Advisor, Digital Rights at Telia Company provided the IPKat with the following comment as regards to the reported decision:

As you will understand, this is a matter of truly principal importance for us and for the Internet. The legal situation is unclear. We will appeal. The recent court decision is mainly based upon the unexpected ruling against Telenor/Bredbandsbolaget by the Patent and Market Court of Appeal in the beginning of last year in which the latter made its entirely new interpretation of the Swedish law. We argue that the Court, in our specific case, is not obliged to base its ruling on that previous case, but should rather apply Swedish legislation in which case the outcome would be different, i.e. no blocking-order.

The IPKat will continue to follow this case and the next developments in Sweden concerning how court tackle issues of online copyright enforcement.