Swedish file-sharing site infringes copyright

Posted: 14th March 2012

File sharing provided by Swedish website The Pirate Bay (TPB) has been declared unlawful by the High Court, in the first step towards a crackdown on copyright infringement by this popular site.Pirates
A group of record companies representing the UK music publishing business are seeking an order for the six main retail internet service providers (ISPs) – including Sky, BT and Virgin Media – to block the site. The six have a combined market share of some 94% of UK internet users.
Under UK and European copyright legislation, the courts have powers to issue blocking orders against ISPs for copyright infringement. The music companies want the ISPs to take measures to block – or at least to impede – access by their customers to TPB.
Last July, it was held that the High Court had jurisdiction to make such an order against BT in order to block the site Newzbin. UK and European courts have also declared that there is no requirement to join either TPB or any of its users in such an action. This case does not involve TPB or any of its users, but the ISPs themselves. TPB is currently subject to litigation in other countries.
It was considered disproportionate to join the operators of TPB in the action, as they, having been convicted of criminal copyright offences in the Swedish courts and appealed against the convictions, have since left the jurisdiction of the Swedish courts.
TPB uses a ‘peer-to-peer’ file sharing protocol known as ‘BitTorrent’ that allows a file of any size to be distributed over a number of computers in order to make it quicker to download. Users volunteer to allow their computers to be used for this purpose.
The record companies claim that such action has infringed their rights in a number of sample recordings by first copying, and then communicating, the works in question. These works include recordings by Lilly Allen, Noah and the Whale, Scouting for Girls and Plan B. The ISPs were not present at the hearing, stating that it was for the court to decide the matter.
The court held that ‘a user of TPB who selects a torrent file in order to obtain a copy of particular content, and then downloads the associated content files, copies the content contained in those files on his or her computer. It follows that, if the content files comprise a copyright work, and if the user does not have licence of the copyright owner, he or she will be infringing copyright.’
It was further held that the works had been ‘communicated to the public’ by being made available to users who had not bought the recordings from an authorised source. Not only had the operators of TPB communicated the works to the public, they had also authorised the copyright infringement and were jointly liable for any infringement by their users, not least because TPB profits from providing the facilities for such infringement.
In conclusion, the court stated that ‘users and the operators of TPB infringe the copyrights of the Claimants (and those they represent) in the UK’.
Remaining questions as to the responsibility of the ISPs to prevent such infringement will be heard in due course.