Stefan Widmark

Stefan Widmark

Caroline Ekström

Caroline Ekström

On 17th April 2009 the Stockholm District Court rendered its verdict in The Pirate Bay case. Four men behind the Pirate Bay website were found guilty of contributory copyright infringement, and were sentenced to one year's imprisonment and ordered jointly to pay Skr30 million in damages to the plaintiffs from the music and film industries.

As part of their appeal for a retrial, the defendants claimed that the district court judge was biased due to his engagement in the Swedish Copyright Association and the Swedish Association for the Protection of Industrial Property. The defendants argued that these associations act in the interest of the rights holders and pointed out that two of the plaintiffs’ counsel were also members of these associations. Hence, they argued, the judge was not impartial.

On 25th June 2009 the Court of Appeal ruled that none of the circumstances put forward by the defendants, seen separately or together, implied that there were legitimate reasons to question the judge's impartiality in this case, and furthermore that there was nothing to indicate that the judge had not ruled impartially in this case. 

The Court of Appeal stated in its decision that the judge’s membership in the relevant associations, and his position as a member of the board of directors of one of the associations, showed that he had an interest in IP issues. The court said that such issues can, to an extent, be considered to be in the rights holders’ interest. However, copyright holders enjoy constitutional protection under Swedish law, and the fact that a judge supports the principles on which copyright legislation rests cannot be considered bias. Moreover, it is valuable both for the courts and for parties in court that judges be both up to date on complicated and specialised areas of law and active participants in legal debates.

The court did, however, point out that the judge should have informed the court of his position as a member of the board of directors of one of the associations prior to the start of the trial. This would have allowed for the bias plea to be heard at an earlier stage of the legal process. Nonetheless, the fact that the judge failed to inform the court of this detail did not  imply that the case should be reheard.

During the spring and summer of 2009, the plaintiffs in The Pirate Bay case once again filed charges against the four defendants and against the internet service provider (ISP) for The Pirate Bay,  Black Internet AB, requesting that the court issue an injunction against the defendants (including Black Internet) prohibiting them from continuing to make the plaintiffs’ copyright-protected works available to the public. The plaintiffs also requested that a preliminary injunction be issued to cover the period until the case is finally decided.

The Stockholm District Court rendered its decision regarding the preliminary injunction on 21st August 2009. Since, of the defendants, only Black Internet could be served the summons application, the district court could only try the claims towards Black Internet at this point.

The court found that the plaintiffs had shown probable cause that copyright infringements were being committed by the users of the website. Furthermore, the court stated that Black Internet, through the verdict in The Pirate Bay case and the warning letters received from the plaintiffs, must have been aware that the users of The Pirate Bay were illegally making available copyright-protected works, and that the operators behind the site had been found guilty of contributing to copyright infringement. Black Internet could, therefore, objectively be seen as contributing to the infringements committed by the users of The Pirate Bay by making internet access to the site available.

The fact that Black Internet is not the only ISP for The Pirate Bay, and that an injunction towards Black Internet would not necessarily block public access to the site, was found irrelevant, since it could reasonably be expected that Black Internet, by continuing its own actions, would diminish the value of the plaintiffs' copyrights.

The court also deemed that the plaintiffs’ interest in putting a stop to the infringements outweighed the disadvantages for Black Internet. In consideration of this, the court issued a preliminary injunction which will remain valid until the case is finally decided. This prohibits Black Internet – on pain of a Skr500,000 fine - from making certain works belonging to the plaintiffs publicly available by providing internet access for the services provided by The Pirate Bay.

After the decision was rendered, Black Internet cut off internet access for The Pirate Bay. The site was shut down for approximately one day, immediately after which it was again made publicly accessible. It is expected that once the plaintiffs have discovered the identity of the new ISP, they will demand that it shut down its services to The Pirate Bay.

For further information please contact:

Stefan Widmark
Mannheimer Swartling
www.kastelladvokatbyra.se
Email: stefan.widmark@kastelladvokatbyra.se
Tel: +46 8 459 1240