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Sweden: Internet Service Provider Ordered to Block Access to File-Sharing Sites

(Mar. 9, 2017) A Swedish court has ordered an Internet service provider (ISP) to block file-sharing websites involved in alleged pirating of intellectual property. On February 13, 2017, the Swedish Patent and Market Court (part of the Svea Court of Appeals), in a judgment of final instance, issued a decision requiring the ISP, B2 Bredband (also known as Bredbandsbolaget), to block access to the file-sharing sites The Pirate Bay and Swefilm or risk a fine of SEK500,000 (about US$55, 286).  (Case PMT [Patent and Market Court] 11706-15 (on file with author); Press Release, Svea Court of Appeals, Internetleverantör åläggs att blockera sina kunders tillgång till vissa s.k. piratsajter [Internet Service Provider Required to Block Its Customers’ Access to Certain So-Called Pirate Sites] (Feb. 13, 2017).)

The Patent and Market Court thereby reversed a lower court decision holding that requiring an ISP to block the sites was unduly burdensome to the ISP. The appellate ruling is final.  (Case PMT 11706-15, supra.)

Background

Several businesses in the music and film industry, including Universal Music AB, Sony Music Entertainment Sweden AB, Warner Music Sweden AB, Nordisk Film A/S, and Aktiebolaget Svensk Filmindustri, sued B2 Bredband for “complicity to intellectual property right infringement.” (Id.)   Swedish law provides that a court “may with threat of [a] punitive fine prohibit [a company] that takes an action or contributes to a measure that is an infringement or violation [described in 53§] from continuing the activity.”  (7 ch. 53b§ 1 para Lag om upphovsrätt till litterära och konstnärliga verk (Upphovsrättslagen) [Law on Copyright in Literary and Artistic Works (Copyright Law)] (Svensk författningssamling [SFS] 1960:729), LAGEN.NU.)

Swedish Implementation of Article 8.3 of EU Directive

The District Court, in its prior judgment, considered the conditions for an injunction unfulfilled, as the offense of complicity under Swedish criminal law generally requires something more than just providing Internet access.  (Case T 15142-14 District Court, at 23; Proposition [Prop.] 2004/05:11 s. 339.) The District Court focused on the Swedish implementation of article 8.3 of the European Union’s Information Society Directive and argued that the Swedish implementation required at least a form of “objective aiding” (medverkan).  (Case T 15142-14, supra, at 25; Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, 2001 O.J. (L 167) 10, EURLEX.)

The Patent and Market Court, however, looked at the European Court of Justice (ECJ) for precedents and, referencing the ECJ’s Tommy Hilfiger case, found that merely providing Internet access was sufficient to require accountability.  (Tommy Hilfiger et al. v. Delta, Case C‑494/15, INFOCURIA.)

As ECJ case law takes precedent over Swedish legislative history, the latter was considered by the Patent and Market Court to be irrelevant. (Case PMT 11706-15, supra, at 20.)  The Court further pointed out that in cases where there is a discrepancy between EU case law and the law as implemented nationally, ECJ case law prevails.  (Id., referencing Björnekulla Fruktindustrier AB v Procordia Food AB, Case C-371/02, INFOCURIA.) Thus, the Court found that by interpreting Swedish law in a “Directive-conformant manner” the Court had to look at ECJ precedent.  ECJ precedent, in its current form, gives right-holders an opportunity to demand an injunction against an ISP when its services are used by a third party to commit infringement of an intellectual property right or related right, even if the ISP only provides its customers with Internet access.  (Case PMT1706-5, supra, at 32.)

The Judgment

As a result of the Patent and Market Court decision, as of February 28, 2017, and for three years thereafter, B2 Bredband is required to block access to the share-filing sites by blocking access to specifically listed domain names and web addresses. Failure to do so will result in a punitive fine of SEK500,000.  (Id. at 33.)

The Pirate Bay site was forfeited to the Swedish government in June of 2016, but B2 Bredband must still block access to 98 different proxy services (web-addresses) that will give access to Pirate Bay. (Id. at 33; Elin Hofverberg, Sweden: Court Rules Pirate Bay URL Domains to Be Forfeited, GLOBAL LEGAL MONITOR (June 10, 2016) .)  In addition, four different Swefilmer addresses, including swehd.com, which is available for purchase and no longer used by Swefilmer, must be blocked by B2 Bredband.  (Case PMT 11706-15, at 30.)  Swefilmer is a movie-streaming portal launched in Sweden, accessed via the Internet through B2 Bredband, that was recently described by Rights Alliance lawyer Henrik Pontén as “a typical example of how a piracy operation looks today: fully commercial, well organized and great efforts expended to conceal itself.”  (Andy, Landmark Movie Streaming Trial Gets Underway in Sweden, TF (Jan. 16, 2017).)  Rights Alliance is a Swedish organization that fights against Internet crime.  (Rights Alliance – Acting Against Illegal Trade, Rights Alliance website (last visited Mar. 8, 2017).)

The injunction only applies to B2 Bredband. Intellectual property owners would have to separately sue other Swedish ISPs to require them to also block the same sites.  According to B2 Bredband, the company has approximately 500,000 users, of whom no more than 100-140 persons have violated intellectual property laws by visiting the listed websites.  (Case PMT 11706-15, at 19-20.)