Background
According to the rightsholder, several Finnish internet subscribers have, unauthorised by the author, made the mentioned tv-shows available to the public to a significant extent. These infringing acts have occurred in a BitTorrent peer-to-peer network.
The IP addresses of the internet subscribers were logged by a technology company that had monitored the BitTorrent traffic. In March 2016, the rightsholder requested the Market Court to order the relevant internet service providers (ISP), namely TeliaSonera, DNA and Elisa, to give up the personal details of the internet subscribers pursuant to section 60a of the Finnish Copyright Act (404/1961).
The Market Court
The court stated that the section 60a of the Act must be interpreted in accordance with the Directives 2001/29/EC (The Copyright Directive), 2002/58/EC (ePrivacy Directive) and 2004/48/EC (Enforcement Directive).
According to section 60a of the Act:
In individual cases, notwithstanding confidentiality provisions, an author or his representative shall be entitled, by the order of the court of justice, to obtain contact information from the maintainer of a transmitter, server or a similar device or other service provider acting as an intermediary about a tele-subscriber who, unauthorised by the author, makes material protected by copyright available to the public to a significant extent in terms of the protection of the author's rights. The information shall be supplied without undue delay.
The author or his representative who has obtained contact information referred to in subsection 1 above shall be governed by the provisions of the Information Society Code (917/2014) pertaining to confidentiality and the protection of privacy in communications, the handling of messages and identification data, information security, guidance and supervision, coercive measures and sanctions.
An author or his representative referred to in this section shall defray the costs incurring from the enforcement of an order to supply information and recompense the maintainer of the transmitter, server or other similar device or other service provider acting as an intermediary for possible damage.
The court stated that the section 60a of the Act must be interpreted in accordance with the Directives 2001/29/EC (The Copyright Directive), 2002/58/EC (ePrivacy Directive) and 2004/48/EC (Enforcement Directive).
The court referred to Court of Justice (CJ) decisions C-275/06 Promusicae and C-461/10 Bonnier Audio, where CJ has ruled that:
ePrivacy Directive does not preclude the possibility for the Member States of laying down an obligation to disclose personal data in the context of civil proceedings.[See C-275/06 Promusicae, paras 54-55 and C-461/10 Bonnier Audio, paras 54-55.]
Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality. [See C-275/06 Promusicae, paras 68-70 and C-461/10 Bonnier Audio, paras 59-61.]
After clarifying the legal basis, the court gave a thorough explanation of the BitTorrent protocol. The court stated that, inter alia, a group of computers downloading and uploading the same content is called a swarm. The computers in the swarm are transferring data between each other. A content shared in a swarm is infringing the author's exclusive right to control a work by making it available to the public. The conduct is infringing even if there are only few computers in the swarm. However, an individual infringement does not automatically mean that the infringer has made copyrighted material available to the public to a significant extent. The court stated that the assessment of the significant extent must be based on an overall consideration of the case. The amount of the users in the swarm is not, per se, decisive. One has to also take into account, for example, the possible harm caused by the entitlement to obtain personal details.
All the tv-shows were shared in multiple swarms. The court paid attention to the total size of the swarms, not only to the amount of the users that were connected with the infringer's IP address. The total size of the swarms regarding each tv-show was at least thousands of users during the analysed 24 hours.
The court stated that the entitlement to obtain personal details is important in order to examine the infringement and to target the infringer. The sharing described above is so significant that the rightsholder needs to have a possibility to intervene the sharing even though it interferes with the protection of privacy. The court emphasized that if the rightsholder is entitled to obtain personal details, it is governed by the provisions regarding confidentiality and the protection of privacy in communications, the handling of messages and identification data and information security. Therefore, the reasons supporting the entitlement to obtain personal details are more significant than the harm caused to the internet subscriber.
The court concluded that copyrighted works were made available to the public to a significant extent from the listed IP addresses. The court ordered the relevant ISPs to give up the personal details of the internet subscribers.
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| Is this swarm meeting the threshold of significant extent? Image courtesy of PixelAnarchy at Pixabay.com |
The rightsholder also tried to get the personal details of the person who receives the invoices regarding the internet subscription. The court rejected this.
The court ordered also the rightsholder to defray the costs incurring from the enforcement of an order to supply information and to recompense possible damage.
The court ordered also the rightsholder to defray the costs incurring from the enforcement of an order to supply information and to recompense possible damage.
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