Rights Holders Win First IPRED Case - International Law Office

Facts
District Court Decision


Facts

On April 1 2009 the Swedish law on the EU Intellectual Property Rights Enforcement Directive (IPRED) entered into force. On the same day, five publishers applied to the Solna District Court to receive information from ePhone – an internet service provider – regarding the identity of an individual behind a certain internet protocol (IP) address. According to the publishers, the IP address has been used for the illegal distribution of 27 audiobooks over the Internet.

ePhone opposed the application and claimed that:

• the new Swedish legislation regarding the order to provide information was in violation of the European Convention on Human Rights and EU Directive 2006/24/EC on the retention of data;
• the publishers had not provided sufficient evidence (ie, probable cause) that an infringement had been committed using the IP address in question; and
• the rights holders' interest in receiving the information did not outweigh the disadvantages that this would imply for the individual behind the IP address.

On May 11 2009 the court forbade ePhone from destroying the information requested until the matter was decided, under penalty of a fine of Skr500,000.

District Court Decision

The court dismissed ePhone's arguments that the Swedish rules could not be applied, by referring to the conclusions in the government bill, the directive on the retention of data and the European Court of Justice ruling in the Promuiscae Case (C-275/06).

Furthermore, the court found that there was probable cause to believe that an infringement had been committed from the IP address in question. The publishers had presented evidence that the 27 audiobooks had been available to download from the relevant server. Although a password was required to access the files, the court found that it was likely that several people had access to the password and, therefore, that it was probable that the files had been made available to the public. Since several audiobooks 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 that this would imply for the individual behind the IP address.

The court ordered ePhone, under penalty of a fine of Skr750,000, to provide the publishers with the requested information regarding the identity of the individual behind the IP address. The decision has been appealed to the Svea Court of Appeal.

For further information on this topic please contact Stefan Widmark and Caroline Ekström at Mannheimer Swartling by telephone (+46 8 5057 6500), fax (+46 8 5057 6501) or email (swi@msa.se or cst@msa.se).