Supreme Court’s take on piracy and privacy
06.08.2010
It is a well known fact that the Norwegian authorities do not prioritize criminal prosecutions of individuals that infringe copyright legislation by making movies, music, software etc available through various file sharing services on the Internet. It also seems to be a widespread conception that users anonymity is absolute in regard to other civilians, and that such user therefore are safely outside the reach of the copyright holders. The latter is now confirmed to be a misconception.
In March 2009 the movie Max Manus was illegally made available on a file sharing service named Lysehubben. Representatives of the copyright holders pretended to be ordinary users who attempted to download the file, and thereby secured the IP address etc of the user who made the file available. Thereafter those representatives contacted the user’s Internet service provider (ISP) and requested information on the identity of the user. The ISP refused and the matter became subject to legal proceedings.
The matter was recently dealt with by the Supreme Court. The contradicting interests in such matter are of course the copyright holder’s right to pursue infringements, and the Internet users right to privacy. An inherent difficulty is of course that the part whose interest is privacy, is not present and able to argue for the protection of his interests. Such matters are therefore dealt with without the same kind of contradiction that is normally the case when a court balances interests and rules on them.
While balancing these contradicting interests the Supreme Court emphasized the fact that the copyright infringement was considered punishable by law as well as giving rise to damages, and that the infringement was substantial. Interestingly the Supreme Court also found it relevant that the police fail to prioritize the criminal prosecutions of copyright infringers, as this means that civil prosecutions for damages are some times the only real sanction. Finally the Supreme Court also emphasized that the specific user did not have and legitimate reasons for wanting to maintain his anonymity towards the holders of the copyright he infringes.
On the more technical side the Supreme Court pointed to the fact that the new (2005) Civil Code expanded on the regulations regarding the securing of evidence outside a lawsuit. One obstacle was, however, that securing of evidence outside a civil lawsuit is only possible if that evidence is of a nature that allows it be used as evidence in a civil lawsuit, ref the Civil Code section 28-4. Evidence is not amicable in a civil lawsuit if such use of the evidence would violate a duty of secrecy that is imposed on i.a. an internet service provider, ref Civil Code Section 22-3. To work around this the Supreme Court used a section of the Civil Code that contains exceptions from the rule that makes confidential information unfit as evidence in a civil lawsuit, and which therefore opens up for that evidence to be secured outside a civil lawsuit.
The Supreme Court upheld the decision from High Court, and the representatives of the copyright holders now has the identity of the specific Internet user, and that user has confessed to having made the Max Manus available in the file sharing service. The copyright holders has made a media statement that they are in dialogue with the person and that they have not decided how to proceed.
As an after note, justice is available, but at a high price. Despite the fact that the court accepted the copyright holder’s claim, these copyright holders were still found liable to cover the legal expenses that the ISP had accrued while disputing that claim, as the main rule is that the party seeking to secure evidence must cover the expenses accrued by the party holding the evidence. The copyright holders therefore were ordered to by the ISP a total of NOK 377 200,- (approx. EURO 50 000,-) for the procedures in city court, high court and Supreme Court, and the copy right holders obviously had also accrued their own legal costs.