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IFPI is misleading the international press on danish court decision

The pirate analysis

By telling half-truths and direct lies, IFPI is trying to mislead the international press about what a recent danish court decision means. To ensure that the press has a chance to know what is really happening we analyze what they wrote in their recent press release and explain the details:

Music companies internationally today welcomed a landmark Danish ruling involving the world’s best known pirate distributor of music, books and films.

Old record companies who are afraid they will no longer be needed because of technologic development and want to stop innovation welcome this. Modern record companies have another opinion.

It is also worth noting that the web site that must be blocked by one of the smaller danish ISPs has never had a chance to state their case to the court. Technically they are not a part in the case.

The decision confirms the illegality of Sweden's Pirate Bay and requires a Danish ISP to implement measures to block access to the site.

Not really. To understand this, we have to explain a bit about the danish court system and the history of this case and danish copyright law.

The legal basis for this case is that Denmark has not properly implemented the european Infosoc directive (2001/29/EC) article 5.1(a). Because of this, danish law says that the purely technical temporary reproduction of small parts of a copy of a copyrighted work as it passes the routers in an internet service provider's network in the form of IP packets is illegal if said copy of a copyrighted work is illegal. It is interesting to observe that the top civil servant responsible for copyright law in the danish government at the time we misimplemented the Infosoc directive in danish copyright law was Peter Schønning, the same lawyer who is now handling the court case for IFPI. Because this case is based on a misimplementation of european law into local law, a similar decision is not possible in other EU member countries.

In Denmark we have four types of courts. They are, ordered by increasing authority: Fogedretten, Byretten, Landsretten (High Court) and Højesteret (Supreme Court). The first instance court is Byretten. In this case only Fogedretten and Landsretten has been involved. Fogedretten is a special court with low authority. It can make fast preliminary decisions in urgent matters.

Although the urgency of this case can be debated, as IFPI had known of The Pirate Bay for several year without starting legal proceedings, IFPI asked Fogedretten to order the small (4 percent market share) danish ISP Tele2 to block access to The Pirate Bay, and got a preliminary injunction ordering Tele2 to do so earlier this year.

In cases like this, Fogedretten needs no evidence. All that is needed to get an injunction is that the plaintiff can convince the court that their claim is credible. The reason for this is that when the matter is urgent there may not be time for a proper evaluation of the evidence. Also, such decisions are usually later followed by a proper court case, though this is not a legal requirement.

The judgment delivered yesterday by the Danish appeal court upholds the decision earlier this year requiring access to the Pirate Bay to be blocked. The court confirmed the mass scale infringement taking place on the Pirate Bay site and that the ISP in question, Sonofon, is contributing to the infringements by allowing access to the pirate site. It is the latest step forward in attempts by the creative industries to engage ISPs in helping stop massive copyright infringement on the internet.

This is misleading, giving the impression that this is a final decision. In fact the real court case has not even started yet.

It is not a judgment, but a decision by Landsretten (our High Court) to uphold the earlier decision from Fogedretten.

Landsretten has not confirmed that mass scale infringement takes place on The Pirate Bay. In the appeal Landsretten looked at various other objections by the defendant to the decision from Fogedretten. The most important objection, which IFPI has not denied, is that no copyrighted material is ever transferred to or from The Pirate Bay. The full list of objections can be found in the decision from Landsretten (in danish).

Please note that IFPI is talking about an ISP called Sonofon here, while we mentioned that the case was started against an ISP called Tele2. In this case IFPI is right: After the case was started Tele2 merged with another small ISP called Sonofon.

Pirate Bay is a commercially-driven business which makes substantial revenues by distributing unauthorised copies of copyrighted works.

It is disputed if The Pirate Bay is a commercially-driven business which makes substantial revenues, and this claim has never been proved in a court of law.

The Pirate Bay does not distribute copyrighted works. Two years of police investigations, starting with simultaneous raids at many different locations with hundreds of computers confiscated and later analyzed has clearly shown this.

The four individuals responsible for setting up and running the site are facing criminal prosecution in Sweden and the hearing is scheduled to begin in February in Stockholm.

There are three individuals responsible for setting up and running The Pirate Bay. These people openly admit what they do. The fourth person is the former employer of one of these people; he helped the ISP hosting The Pirate Bay to start up. The reason he is targeted is probably that he is a rich person, and will be able to pay the requested damages.

It is unknown if these people will receive a fair trial. The initial raid and police investigation may have (illegally according to swedish law) been ordered by the swedish Minister of Justice. The policeman in charge of the investigation left the police just after the police investigation was closed. Later it was revealed that he got a new job working for one of the companies that prompted the police to start the investigation, and that he negotiated the terms of his new employment while still investigating The Pirate Bay. When the press started writing about it he left his new job and went back to the police. He is scheduled to testify in the coming court case for the police, although the police according to swedish law is supposed to be unbiased.

It is worth noting that there are no charges of copyright infringement against these people.

The ruling was welcomed by IFPI, representing a membership of some 1,400 record companies internationally.

The ruling prompted The Pirate Bay, representing 19 million users, to show (in danish) people how easy it is to avoid the attempts at blocking access.

IFPI Chairman and CEO John Kennedy said: "This is a very important decision which sets a precedent for other countries and highlights the key role that ISPs should play in helping protect copyright online . The ruling is also a clear confirmation of the illegality of the Pirate Bay, coming just a few weeks before the criminal prosecution of the site's operators in Sweden. For everyone trying to make a living out of music, this is hopefully the start of the endgame for a business which is ripping off creators all over the world, and whose motivation is very clearly nothing to do with music but a great deal to do with making money."

The organisation representing independent record companies also welcomed the decision. Alison Wenham, President of the World Independent Network (WIN) said: " It is very good news to see the courts clarifying that ISPs have a key role to play in helping curb sites like Pirate Bay which simply trade on the theft of the work of creative people."

Ole Husgaard, chairman of the Pirate Party in Denmark said: "This is not about money or copyright. This is about control. A new generation of musicians have found out that the recording industry is bad for the music. They are distributing their music for free on the filesharing networks so they can become more known, and earn more money on concerts. These are the people that IFPI really want to stop."

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