Rights holders succeed in first IP rights enforcement case

On 1st April 2009, the Intellectual Property Rights Enforcement Directive Law came into force in Sweden. That same day, five publishers handed in an application to a district court to obtain information from an internet service provider (ISP) about the identity of an individual behind a certain IP address. According to the publishers, the IP address had been used for the illegal dissemination of 27 audio books over the internet.

The ISP - ePhone - opposed the application and claimed that:
  • The new Swedish regulations regarding orders to provide information were in violation of the European Convention on Human Rights, and Directive 2006/24/EC on the retention of data.
  • The publishers had not provided sufficient evidence (probable cause) that an infringement had been committed from the IP address in question.
  • The rights holders’ interest in receiving the information did not outweigh the disadvantages this would create for the individual behind the IP address.   

The court dismissed ePhone’s arguments that the Swedish rules could not be applied. It referred to the conclusions in the government bill, as well as to the directive on the retention of data and the Promuiscae decision (C-275/06) of the European Court of Justice. Furthermore, the court found that there was probable cause to believe that infringement had been committed from the IP address in question.

The publishers had presented evidence that the 27 audio books had been available to download from the relevant server. Even though a password was required to access the files, the court found it likely that several persons had access to the password and that it was therefore probable that the files had been made available to the public. Since quite a number of audio books had been made available to download, the court deemed it likely that extensive copyright infringement had been committed and, therefore, that an order to provide information outweighed the disadvantages faced by the individual behind the IP-address. 

The court ordered ePhone – on pain of a Skr750,000 fine -  to provide the publishers with  the identity of the individual behind the IP address. Previously, on 11 May 2009, the court had forbidden ePhone - on pain of a Skr500,000 fine - to destroy the requested information until the matter was decided.
The decision is under appeal at the Svea Court of Appeal.

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