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Sweden: The problems of file-sharing

01-10-2015

Maria Zamkova

In 2003, The Pirate Bay, an online index of digital content of mostly entertainment media, was founded in Sweden. It allows visitors to download and contribute magnet links and torrent files, which facilitate peer-to-peer file-sharing among users of the BitTorrent protocol.

Six years later, the three founders were found guilty by the Stockholm District Court of assisting in copyright infringement and were sentenced to serve one year in prison and pay a fine of kr30 million ($3.5 million). On appeal the prison sentences were reduced but the damages were increased, and in February 2012 the Supreme Court of Sweden refused to hear an appeal.

In 2013, a prosecutor filed a motion targeting the domain names thepiratebay.se and piratebay.se. However, this time the case was not just against one of the co-founders of The Pirate Bay but also against the Internet Foundation in Sweden (IIS). The prosecutor argued that since The Pirate Bay is an illegal operation, its domain names are tools used by the site to infringe copyright. As IIS supplies and controls the domain names, it is therefore liable for their misuse, and the domain names should be dealt with in the same way that other criminal tools would be.

IIS took the position that holding a registry responsible for infringement has no basis in law, as a top-level domain (TLD) administrator should not decide whether a case is against the law. 

On May 19, 2015, the Stockholm district court ruled that the domain names were the property of The Pirate Bay co-founder Fredrik Neij and could be seized as he is a convicted felon.

"From a legal point of view, it is not clearly illegal to use the programme, as it is not illegal to only view streamed material."

The court also concluded that IIS contributed to the crimes—however, the domain names cannot as such be confiscated from IIS as its participation should not be regarded as criminal. IIS was not responsible for the activities of The Pirate Bay and couldn’t be held liable.

The prosecutor has decided to appeal the district court’s ruling to the Svea Court of Appeal, meaning that the judgment has not become final.

The Pirate Bay was down for some time, but pretty soon came up again on a number of other country-code TLDs.

Legal questions

Popcorn Time is the latest very popular free download service. It says on its website: “Popcorn Time is constantly searching all over the web for the best torrents from the most important sites. If the movie is out there, Popcorn Time will find the best version possible and start streaming it right away … a service that will never be taken down. Download and enjoy. Best of all ... it’s free!”

However, the movies are allegedly pirate copies and come from the same sources that are used by The Pirate Bay.

From a legal point of view, it is not clearly illegal to use the programme, as it is not illegal to only view streamed material. However, as Popcorn Time uses torrents to collect the movies, the user will automatically download the material on its own computer when watching the movie. That also means that the file is temporarily saved on the hard disk.

The question remains: does the user thereby also participate in the infringement? That is definitely the case if the user downloads and sends the movie to others. There have been a number of court orders and legal actions to stop Popcorn Time. When time4popcorn.eu was suspended “upon verification of the contact data” on October 9, 2014, the website was quickly relocated to popcorn-time.se, where it was 100% active as of the time of writing.

There is a continuing discussion in Sweden on the possibility of stopping Popcorn Time. The media representatives state that they have clear grounds to sue both Popcorn Time and the users, whereas legal/copyright professors at Uppsala University conclude that it will be very difficult to stop the users.

However, those who download a movie from Popcorn Time or similar sites will soon receive an invoice from the movie company. It is still cheaper to go to the traditional cinema.

Maria Zamkova is chief executive of Fenix Legal. She can be contacted at: maria.zamkova@fenixlegal.eu

Maria Zamkova, Fenix Legal, The Pirate Bay, Popcorn Time, file-sharing, IP,

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