Naturally this approach leads to friction since ISPs don’t want to be held responsible for the activities of their users and don’t want to stress customer relations. In order to address the issue, the Ministry of Culture formed an Anti-Piracy Committee who have been trying to come to agreement on how infringements should be handled.

Negotiations between lawyers, rightsholders, ISPs and other groups have been going on since the start of the year and early this month it was finally revealed that Denmark would indeed by treading a 3 strikes path, although exactly how it will do so remains undecided. As usual, everyone is arguing about who bears the cost.

At the moment there are two models on the table. Rightsholders will almost certainly do all the monitoring of file-sharers, but in one model ISPs send out warning letters and in the other the task is handled by a public body. In both models, an independent body assesses the evidence.

The letters to be sent are also set to contain an educational message. While indicating that rightsholders have detected an infringement from the IP address in question, it’s proposed that recipients should also be informed about Denmark’s Copyright Act. Information on how to secure a wireless network and how to block and/or remove file-sharing software will be included along with the telephone number of a helpdesk to answer further questions

Comon.dk have been following developments closely and have made efforts to get information about negotiations from the Anti-Piracy Committee. After experiencing difficulty, Comon was told by Committee members that they had “promised to keep working secretly in order not to create too much fuss” and “could never agree on some recommendations if there was too much public debate about its work.”

Martin Salamon from the Consumer Council, which is opposed to sending out warning letters, confirmed that there was agreement not to discuss matters with the press.

Of course, this is problematic on a number of levels and especially when consumers inevitably pick up the tab. If the entertainment industries pick up the bill initially, their customers pay. If ISPs have to finance 3 strikes, their customers pay. And if the government pays, taxpayers have to pay.

Although it seems unlikely that the government will pick up the bill for administering whichever model is chosen, already it is pledging to get more involved in the anti-piracy fight. To this end it is offering financial support to help the entertainment industries’ battle.

The government says that it has put funds aside to assist in raising public awareness of its anti-piracy message. In a statement the Ministry of Culture said it will match money put into the campaign by rightsholders and Internet service providers. The amount is confirmed to be around 1 million kroner ($187,700).

Earlier anti-piracy campaigns in Denmark have failed so it will be interesting to see if the approach this time will be different. After all, only an insane person does the same thing over and over again and expects different results.

Source: Secret Anti-Piracy Negotiations, 3 Strikes, And a Taxpayer Funded Campaign

Other approaches, such as the super high-profile and aggressive litigation campaign pursued by the RIAA in the United States, tried to send the message that financial ruination is the inevitable result of sharing music files.

The movie industry’s MPAA tried a “we’re looking over your shoulder” angle with their Internet-only ‘You Can Click But You Can’t Hide’ campaign which was designed to reinforce the notion that file-sharers are not anonymous and can be held accountable.

Untold other campaigns from a myriad of anti-piracy groups followed, from educating kids in schools and persuading boy scouts to take a copyright awareness badges, right up to trying to convincing the public that there is a human consequence to sharing files. Creators everywhere will starve, entertainment will come to an end, and this dark future can only be avoided by buying media instead of downloading it, they cautioned.

Like their counterparts in other parts of the world, Denmark’s Antipiratgruppen have been working tirelessly with anti-piracy activities of all kinds during recent years as they desperately try to discourage people from downloading media from the Internet. In common with similar campaigns from America to Asia, the end results are largely the same – they have failed to reduce the overall numbers of people sharing files.

That’s according to a new survey conducted by YouGov Zapera on behalf of publication MetroXpress. Carried out during the first week of August 2010, the survey consisted of interviews with a representative sample of people aged between 18 and 74 years old.

When questioned, 23% of respondents said that they had the ability to find and download music and movies from the Internet. In 2009 that figure was 20%. When it came to music alone, 27% of respondents said they had downloaded from the Internet. In 2009 that figure was 24%.

Troels Møller from pro-piracy group Piratgruppen said that the lack of progress comes as no surprise.

“The advertising campaigns used to prevent illegal downloads have been a waste of money and have in general been a cop-out from the record industry,” he told MetroXpress. “They try to give people a bad conscience about something that there is nothing wrong with. Because you are not stealing from anyone. On the contrary, you are sharing with others.”

Bente Skovgaard Kristensen, who is responsible for copyright issues at the Ministry of Culture, says that the problem of illegal downloading is massive.

“The unchanged position on the course of piracy shows that there is a problem,” she admitted in a response. “Because the scope of copyright violations on the Internet is so large the Government has appointed a committee to look at how to deal with the issue. They report back with their findings later this year.”

The only area where opinion was slightly improved was in that concerning legislation. In 2009, 31% of respondents said that they felt copying of music and movies should be made legal. This year that figure dropped to 30%.

Source: Anti-Piracy Campaigns Fail, People Keep Downloading

Two years ago we reported on a case where an intentional leak was used as a promotional tool. When the band BuckCherry found out that their latest single had leaked on BitTorrent, they issued a press release instead of trying to get the torrents offline.

In the press release they reported how devastated they were that the single was up for grabs. However, it all turned out to be staged event as we later found out that the person who uploaded the torrent had the same IP-address as the band’s manager.

BuckCherry’s failed PR-campaign was pretty low, but Danish filmmakers have taken this particular promotional technique quite a bit further by blaming a third party for the leak. A few days ago the makers (Regner Grasten Film) of the film Winnie & Karina issued a press release in which they accused the Danish copyright reform group Piratgruppen of stealing the master DVD.

“Until now there has been no ransom demands, but Regner Grasten Film is willing to do all it can to avoid the film being made available for free online,” they wrote in the press release.

The film in question was a big flop in theaters but through the faked piracy threat they hoped to get some attention for the upcoming DVD-release. The press release was ignored by the media though, so they had to release another one a few days later.

In this new press release they went even further by claiming that Piratgruppen was threatening to leak the film on YouTube that evening. Again, the media didn’t pick it up and eventually the filmmakers came clean by stating that the whole story was made up.

In an email to Piratgruppen the studio’s boss Regner Grasten admits that he was desperate because of the bad reviews and disappointing ticket sales. Accusing Piratgruppen of breaking into their premises and stealing the master film was just a joke, Grasten explained in the email.

Piratgruppen couldn’t really see the humor in being accused of a serious crime and called it a “pathetic little media stunt”.

In the end the filmmakers got a bittersweet result, since although the Danish media finally picked up the story, their failure was exposed.

Source: Filmmakers Fake Piracy Threat to Boost Sales

Wanting to have this legal contradiction dealt with by his government, he confessed to anti-piracy group Antipiratgruppen that he had illegally broken the DRM on a hundred movies and TV shows. The full background to the case can be found here.

After Antipiratgruppen missed the deadline to respond, Henrik announced a couple of days ago he would report himself to the police. But now the group has responded, in a way that is possibly as confusing as the original law, although in a way that also makes perfect sense.

Their first paragraph notes that it is illegal to circumvent the “so-called effective technological measures” without the consent of rights holders – a reference to copy protection on a DVD. They also note that making a copy of the DVD in order to watch it on a media center (this issue Henrik is trying to draw attention to) is also illegal.

So far, so good. Now here’s the interesting part:

That said, the main purpose of the rule is to ensure against abuse of films and music being illegally copied and distributed further. The Association of Danish Videodistributors certainly have no interest in suing consumers who like you have purchased legitimate products – quite the contrary.

In a nutshell, Antipiratgruppen says that as long as people buy movies initially, they don’t mind them a taking digital copy for their own use, as long as there is no distribution to 3rd parties – despite both acts being equally illegal.

Commenting on the news, Henrik told TorrentFreak: “I’m glad that they will not prosecute me. But at the same time it’s still illegal, so …”

Henrik says that since this section of copyright law has no effect in the real world, it should simply be abolished so that people know where they stand, since other people in the future might take a different stance.

“Who is to say that if the anti-piracy group suddenly falls over a man with a 1000 films that they would not prosecute him, even though he has paid for his films? Once again: it is still illegal,” he told us.

Although Antipiratgruppen have responded promising not to prosecute, Henrik told TorrentFreak that he’s not going to rest here.

“Act (§ 75C) is not modified / removed yet. Only on the day where the Culture Minister said the law will be removed / changed will my goal be reached.”

Next week, Henrik will try to contact the Culture Minister, who thus far hasn’t been interested in doing much, but at least at this point must realize that there is something very wrong with the law.

The full response from Antipiratgruppen can be found here.

Source: Anti-Piracy Group To DRM Breaker: OK To Break The Law

Henrik Anderson told TorrentFreak that in order to force his government’s hand on laws which allow him to copy DVDs for his own personal use, but forbid him to remove the DRM in order to do so, he decided to turn himself in.

Henrik informed the Danish anti-piracy outfit Antipiratgruppen that he had broken the DRM on more than one hundred legally-purchased DVD movies and TV shows for use on his home media center, an act forbidden – but seemingly also allowed – under Danish laws, both detailed below;

12.–(1) Anyone is entitled to make or have made, for private purposes, single copies of works which have been made public if this is not done for commercial purposes. Such copies must not be used for any other purpose.

§ 75 c. It is not permitted without the consent of the rightholder to make circumvention of effective technological measures

“I’ve started this because I don’t want to be a criminal,” Henrik told us, in his own similarly and deliberately contradictory way, noting that he’d requested a response from the group by today, December 1st 2009, indicating whether or not they intend to prosecute him.

However, in the period up to today, Henrik heard nothing from Antipiratgruppen, although their lawyer Thomas Schlüter did speak to the Danish press, saying that it was a political matter but had nevertheless reported the issue to the Association of Danish Videodistributors for consideration. In response, their chairman, Poul Dylov, said they would have a meeting to decide whether to report the matter to the police.

Antipiratgruppen said it would reply to Henrik by they date he requested. It seems they have broken their promise.

“Today was the last chance for the anti-piracy group to come up with an answer,” Henrik told TorrentFreak a few minutes ago. “And although, as you know, they told the press that they would give me an answer before the 1st of December, they have not done that.”

Henrik told us that even though he has broken the law, Antipiratgruppen doesn’t seem interested in responding. “They are obviously aware that there will be an outrage if they reported me to the police,” he points out.

The other possibility, he says, is that Antipiratgruppen themselves don’t see his actions as illegal – but this creates another problem. The Ministry of Culture have already written to Henrik informing him that breaking DRM in this way is against the law.

Clearly frustrated, Henrik told us: “But who should I follow? Those that determine the laws in this country? Or those who are lawyers for the companies that i’m committing a crime against?”

But Henrik has a solution to their inaction.

“I decided to try to see if I can report myself directly to the police, for the case must be resolved,” he told us.

Henrik feels that the situation he is trying to draw attention to can only be solved by him going to trial. Hopefully then the Minister for Culture and the Danish parliament will see that the law has to be changed.

Source: Anti-Piracy Group Refuses Bait, DRM Breaker Goes To Police

“It requires very strong and concrete evidence to have these people convicted. We simply could not lift the burden of proof,” said Antipiratgruppen lawyer Mary Fredenslund when explaining the decision to Politiken.

In just a year, four cases against alleged pirates have come before the High Court in Denmark and the overall result for the copyright holders has been negative. Three of the defendants were acquitted due to insufficient evidence, and in the one case where a file-sharer was convicted, the defendant had confessed.

Defense attorney Per Overbeck says that in addition to these outcomes, cases against two of his clients have been dropped in recent years. “Antipiratgruppen has acknowledged that they can not get people convicted without either catching them in the act or threatening them to confess,” Overbeck said. “In practice, this means that without a confession there is no case,” he added.

Per Overbeck and Antipiratgruppen’s assessment that recent High Court rulings make it virtually impossible to get individuals convicted for illegal file sharing are supported by a recent Government report from the Ministry of Culture.

According to the report, IP-addresses can only be used to identify the person paying for the Internet subscription, not the person who actually downloaded the files. The courts have ruled several times that in terms of evidence, an IP-address alone is insufficient to prove guilt.

In one case a defendant walked free after arguing that that someone else must have accessed his wireless router to download copyright infringing material.

Despite these legal setbacks for copyright holders in Denmark, it is worth noting that Danish anti-piracy tracking company DtecNet remains the main partner of the RIAA and other music groups in countries where governments are looking to implement three-strikes policies to get alleged file-sharers disconnected from the Internet.

The evidence DtecNet gathers also consists of just an IP-address. Indeed, there is no known anti-piracy method to discover who is sitting at a particular keyboard, on any particular computer, at any given time.

In the on-going trial of AFACT v iiNet, DtecNet gathered the evidence used in the case. Under cross-examination a computer forensics investigator – who was previously a key witness in the 2004 KaZaA trial – admitted that any ISP account could have multiple users in the same household, and could have other unauthorized 3rd-party users if a wireless router was compromised.

Source: Anti-Piracy Group Throws in the Towel, Pirates Walk Free

“I’ve started this because i don’t want to be a criminal,” Henrik told TorrentFreak.

“As the law is today, you can not have a media center without breaking the law. When I think of a media center it is a place where you have all your movies, pictures and music together. You can only do that by having a digital copy of the movie.”

“In my media center I have digital copies of my legally purchased DVD movies,” he writes in his confession. “Overall, I suppose I’ve made digital copies of approx. 100 films and 10 seasons of TV series,” he added.

On the surface this should be fine, since Danish copyright law allows for the private, non-commercial copying of purchased DVDs.

12.–(1) Anyone is entitled to make or have made, for private purposes, single copies of works which have been made public if this is not done for commercial purposes. Such copies must not be used for any other purpose.

Unfortunately the law does not allow for the circumvention of the DRM on the disks in order to do so.

75.c –(1) It is not permitted to circumvent effective technological measures without the consent of the rights holder.

“Since the above copying is a violation of Danish law, I would therefore like to declare myself in violation of section 75 of the copyright law,” Henrik told Antipiratgruppen.

While previously acknowledging this catch 22 situation, Denmark’s Ministry of Culture felt that the situation would shortly rectify itself.

“…it is expected that in future copy protection will be designed in such a way that it will be possible to take one or more copies for personal use, and this is certainly the intention of the law,” they wrote.

However, as Henrik points out, while this might be the government’s plan, the movie industry has failed to live up to this vision, hence his intended piracy martyrdom to draw attention to the issue.

“As the culture minister sees no reason to change the law, she must, in my opinion, not understand the problem, therefore I choose to confess to you, to see whether you are prepared to get the legislation tested in court,” says Henrik as he concludes his confession.

Henrik has given Antipiratgruppen until December 1st to respond. Even given a prosecution on a plate, it’s extremely unlikely they will take him up on his offer.

Source: DRM Breaker Reports Himself To Anti-Piracy Group

In Denmark, negotiations between copyright holders and ISPs are underway, with ITEK (the Danish information technology, telecommunications, electronics and enterprise federation) acting as intermediary in the setting up of a ‘Pirate Board’, designed to settle disputes without the need for lengthy court battles. According to Computerworld, examples of the type of extended litigation they would like to avoid in future are the domain-blocking cases against AllofMP3 and The Pirate Bay.

On the rights holders side are companies such as Sony and EMI, with ISPs TDC, Telenor and Telia on the other. ITEK spokesman John Kristensen confirmed that that talks are underway. “I can confirm that we are working on a joint industry initiatives. But I can’t be precise on the details yet,” he said.

Although negotiations are reported as “intense” there are areas where the two sides remain far apart, mirroring the situation in other countries in Europe where these type of discussions ended without agreement. At the moment the summer is being eyed for a conclusion, but that seems very optimistic since at the moment, Denmark’s ISPs seem determined not to become Internet policeman on behalf of the copyright holders.

Other proposals involving the ‘Pirate Board’ surround the hot issue of a 3 Strikes-style regime for file-sharers, but with a twist. Rather than rights holders sending warnings to alleged file-sharers via ISPs, instead these would be issued by the Pirate Board. If the recipients of these warnings then fail to respond, they wouldn’t be disconnected from the Internet but instead find themselves in a traditional court case.

Which is the exact place this Pirate Board aims to prevent everyone ending up. Stay tuned….

Source: ISPs and Copyright Holders Set Up ‘Pirate Review Board’

“We are pleased that we now have the opportunity to find out whether it is Internet Service Providers responsibility to ensure the closure of a website,” said Telenor’s regulatory chief Nicholai Kramer Pfeiffer.

Referring to the court’s decision last year ordering it to block the world’s largest tracker, Pfeiffer added, “We have always been highly skeptical when we receive subpoenas in this type of case.”

Pfeiffer told Computerworld that he believes taking the case to the Supreme Court will result in a clearer picture for those dealing with these types of cases (blocking sites) in the future. “We seek a clarification of whether we have a responsibility to help the stuff flowing through our networks, as we have no commercial interest in the individual sites,” said Pfeiffer.

Pfeiffer also said that it makes “good sense” to get as close as possible to the source of a problem. Indeed, if the Swedish authorities could close down The Pirate Bay, then there would be no need for Telenor to block anything at all, since there would be nothing to block.

Earlier this year Pirate Bay’s Peter Sunde told TorrentFreak that they are seriously considering suing the IFPI for unfair competition. “They have had a monopoly on distribution and we’re breaking that monopoly, and in turn they sue people that allow access to our distribution method,” he told us at the time.

The IFPI is not scared of yet another confrontation. “Peter Sunde is welcome to sue us,” Jesper Bay, the head of the Danish IFPI said when the news was announced. Ironically, one of the websites explaining how to get around the Danish blockade carries Jesper Bay’s name.

Source: Danish Pirate Bay Block Sets Sail for Supreme Court

“It must be assumed that it is already in accordance with current Danish law that in principle it is possible to close an Internet connection that has been used to infringe copyrights,” says Peterson. “But the law does not take into account the very significant conflicting interests that will prevail in such a case,” he added.

The problem is the unbalanced approach to a potential disconnection. In Denmark an Internet user’s interests are not considered when making a decision to close a site or connection – they are not even involved in the process and therefore have no opportunity to defend themselves. Furthermore, should a connection or site be closed in error, there is little chance for claiming compensation. “It’s obvious that this runs counter to some basic legal principles,” says Petersen.

One of the problems lies in the way the Danes implemented the EU 2001 ‘Infosoc directive‘, which differs greatly from the manner in which other EU countries have handled it. Under Danish law, ISPs can be made responsible for the copyright violations of their subscribers, which is why ISPs can shut down a customers Internet connection or close a website so easily.

Now, according to Comon.dk, in the latest draft report from the Ministry of Culture Conference on piracy, having previously ignored the problems the Danish government has now included the concerns of Professor Petersen, as it tries to decide whether or not to introduce new legislation against users who share copyright material on the Internet.

The draft is also set to look at some of the demands being put forward by the IFPI and other similar groups, including their 3 strikes initiative. Another IFPI proposal is that individuals should be made responsible for whatever happens on their Internet connection, whether they carried out any infringements or not. This suggestion was put forward after legal action by IFPI against two women failed last year, with the pair successfully arguing a ‘wireless defense’. The women said they had no knowledge of the alleged infringements and therefore shouldn’t have to pay any damages. The court agreed and acquitted them of all charges.

To avoid this type of outcome in future cases, the IFPI wants to change the burden of proof so that instead of the rights holder having to prove that an individual engaged in piracy, it is up to the individual to prove that he didn’t and that the responsibility for infringement lies with a 3rd party.

The final version of the report will be published in the spring.

Source: Biased Anti-Piracy Laws Cause Problems in Denmark

Peter Sunde, co-founder of The Pirate Bay told TorrentFreak that they are seriously considering suing the IFPI for unfair competition. “They have had a monopoly on distribution and we’re breaking that monopoly, and in turn they sue people that allow access to our distribution method,” he said.

Meanwhile, all other BitTorrent sites are still accessible in Denmark, and thus far the IFPI hasn’t announced it will go after any of them. This, together with the fact that there are several tricks to get around the block, make their legal strategy look like a personal vendetta against The Pirate Bay instead of an effective measure against piracy.

Before The Pirate Bay takes action against the IFPI, they will first await the outcome of the Supreme Court appeal that the three ISPs – DC, Telia and Telenor – announced earlier this week. If the appeal is unsuccessful, and when they find the perfect lawyer to represent them, The Pirate Bay will sue IFPI.

The IFPI seems to be looking forward to yet another confrontation. “Peter Sunde is welcome to sue us,” Jesper Bay, the head of the Danish IFPI told Comon.dk in a response to the news. Ironically, one of the websites explaining how to get around the Danish blockade carries Jesper Bay’s name.

For now, the Pirate Bay team has another court case to focus on. In two weeks their trial in Sweden kicks off, where the IFPI will also be one of their opponents. To be continued.

Update: Initially we reported that all Danish ISPs have to block the Pirate Bay. This is not the case. The latest court decision is a preliminary injunction against DMT. This means that it is only binding against ISPs owned by DMT (thanks Ole).

Source: The Pirate Bay Plans to Sue IFPI

IFPI welcomed this proclaimed landmark decision, and put other Internet providers on notice that it would go after them too, warning them to block The Pirate Bay – or else. These threats now appear to have borne fruit. As of today, the largest ISP in Denmark (TDC) is blocking access to The Pirate Bay. This precautionary measure has been taken before the appeal has been handled by the Supreme Court.

For the IFPI, this is just the beginning. They have already tried to use the ruling to force ISPs outside Denmark to take similar measures, even attempting it on The Pirate Bay’s home ground, Sweden. However, this attempt failed. In fact, it seems that filtering traffic to The Pirate Bay is actually illegal according to European law.

The Danish case is currently being appealed, and Pirate Bay co-founder Peter Sunde told TorrentFreak earlier: “We’re confident that Tele2 will win in the Supreme Court, when they [the court] really dig into the technology and try to understand the whole concept. It’s important for net neutrality and it’s also important for file sharers in Denmark to have this tried (and won).”

Meanwhile, as the IFPI continues to put pressure on ISPs worldwide, it also suffered a recent failure in Italy. In their recently published Digital Music Report they call their dealings with ISPs ‘cooperation‘, but so far they have yet to show their cooperative side.

Source: Largest Danish ISP Blocks The Pirate Bay

Consequently the court ruled that access to The Pirate Bay had to be blocked. Tele2 appealed this decision, but lost again two weeks ago.

The court case was initiated by the IFPI – the infamous anti-piracy organization that represents the recording industry. The IFPI later tried to use the “landmark decision” to force Swedish ISPs to do the same, but failed. In fact, it seems that filtering traffic to The Pirate Bay is actually illegal according to European law.

The fight is not over yet though. Since this case could have huge implications for other ISPs and websites, Tele2 has announced that it will take it all the way to the Supreme Court. Fortunately for them, they won’t be alone either. They are backed by the telecommunications industry association. Jens Ottosen, president of the association told Computerworld that, if this decision is upheld, Danish ISPs might be forced to block other sites as well.

In a response, Pirate Bay co-founder Peter Sunde told TorrentFreak: “We’re confident that Tele2 will win in the Supreme Court, when they [the court] really dig into the technology and try to understand the whole concept. It’s important for net neutrality and it’s also important for file sharers in Denmark to have this tried (and won).”

When the appeal is successful, The Pirate Bay will claim damages from IFPI. “I hope that they [Tele2] win so we can demand retribution from IFPI.” Peter said. “As I’ve stated earlier we would like them to have to pay damages to us. In that case we would help set up a fund for Danish aspiring musicians that in turn would release music using a Creative Commons license.”

The Supreme Court still has to accept the appeal before the case can go on. Despite the outcome, blocking The Pirate Bay didn’t have the effect that the IFPI was hoping for. On the contrary, traffic from Denmark went up, instead of down. However, this case is about more than just The Pirate Bay, it is about censoring the Internet.

Source: Pirate Bay Censorship Case Not Over Yet

In common with many other countries, in September the Danish Ministry of Culture received proposals from the IFPI for the ‘Graduated Response Scheme’, aka ’3 Strikes’. Now, according to Comon.dk, just a matter of weeks later, the possibility of Denmark adopting such measures are dead.

Comments from politicians which seem to indicate that the IFPI will not succeed in Denmark have been leaking out recently. This has forced the organization to accept defeat: “We have to deal with the political reality that there will be no 3 strikes [in Denmark],” said IFPI’s Jesper Bay.

Stating the obvious reasons why these proposals aren’t being welcomed across Europe, and have been wholly rejected by Danish ISPs, Jesper Bay notes: “3 Strikes is an extremely far-reaching solution and we have said that we must continue to discuss it. We still need to see proof of the allegations of legal security problems, as critics of the 3 strikes have put forward.”

However, the IFPI won’t give up trying to force through something in Denmark. “I think we can find a solution which the Consumer Council can live with,” said Bay, although if warning, limiting and disconnecting file-sharers is too much, there doesn’t seem many places left to go.

Not everyone from the IFPI is in favor of the ’3 strikes’ proposals. Recently, Peter Schønning, a lawyer working for the IFPI, came out and said he wasn’t in favor of the model, which is notable since the organization usually speaks with one voice. Interestingly, up until March 2008 Schønning worked for the government’s Ministry of Culture as the head of Media, Author and Sport, with a responsibility for copyright law.

The IFPI’s Jesper Bay said he was unaware of Schønning’s comments and refused to comment.

Thanks to Peter_Pan

Source: IFPI Abandons “3 Strikes” Model for Danish File-Sharers

This week, however, the IFPI and Danish Antipiratgruppen achieved a small victory in the case of a middle-aged man from Aalborg who used Direct Connect (DC) to share around 13,000 music files in 2005.

According to a Comon.dk report, the IFPI/Antipiratgruppen tracked activity which it linked to an IP address registered to the man. Obviously – as in all such cases – it was not possible to positively identify the person at the keyboard simply via the IP address, but the man made some admissions in what appears to be a generally weak defense, and these seem to help seal his fate.

Having previously lost his case in the district court, the man appealed and the case went to the Vestre Landsret, one of Denmark’s highest courts.

The defendant claimed that he couldn’t figure out how to use Direct Connect but admitted visiting the software’s homepage, albeit on an old PC which dated back to the mid 1990′s. It was also made clear in court that the man did not operate any type of wireless network, eliminating a defense which proved successful in other cases.

The ruling from the Vestre Landsret which was announced yesterday morning, stated that the man was guilty of copyright infringement. “The Court held that no person other than him [the defendant] could have used the IP address, and therefore he was sentenced,” said Antipiratgruppen lawyer, Maria Fred Lund.

The defendant was ordered to pay 160,000 kroner ($24,400) in damages, which was substantially less than the 440,000 kroner ($67,200) the anti-pirates wanted. He was also ordered to delete the music files he had obtained illegally.

Although the damages are less than the IFPI would’ve liked, the defendant’s lawyer, Per OverBech, says they could appeal to get the damages reduced. The court calculated the damages based on the losses estimated to have been suffered following the breach of copyright. The Vestre Landsret set an amount of 80,000 kroner ($12,200) and used the principle of ‘double-up’ to reach a final figure of 160,000 kroner ($24,400).

The ‘double up’ provision in Danish law is comprised of two parts. The first part covers the losses estimated to have been suffered following the breach of copyright. The court then doubles this amount to cover the actual losses and the documenting of such losses, which Antipiratgruppen and IFPI did not do.

“It is worth noting that it certainly pays to deal critically with the requirements of Antipiratgruppen,” said Per OverBech. “But in this case, the Vestre Landsret applied the principle of double-up, and I do not think there is reason for this,” noting that Antipiratgruppen provided no evidence to prove that sales had declined due to the alleged file-sharing activities of his client.

OverBech admits that it is unlikely that he will achieve an acquittal for his client but could go to the Supreme Court to contest the ‘double up’ principle applied by Vestre Landsret.

Thanks Peter_Pan

Source: IFPI Wins Danish File-Sharing Case

The IFPI also accused two Danish women of being Internet pirates, after they claimed to have monitored illicit file-sharing activities on an IP address registered to one of them. The IFPI demanded $62,000 in compensation from the pair, stating that even if their Wi-Fi had been used without their knowledge, they are ultimately responsible for what happens on their Internet connection. Eventually a court ruled in favor of the women and acquitted them of all charges, much to the displeasure of the IFPI.

Now, the IFPI has suffered another defeat, again in a ‘wireless defense’ case. Previously, a middle-aged man from Randers, Denmark, was found guilty of Internet piracy in a case brought by the IFPI on behalf of music copyright holders. The man was ordered to pay compensation of around $11,000 and told to delete the infringing files from his computer. The defendant denied that he had done any of the alleged infringing and claimed that he operated an unencrypted wireless network which anyone could access.

However, in the Vestre Landsret, one of Denmark’s higher courts, the decision of the Municipal Court in Randers has been reversed, according to a Comon.dk report.

The court found that the IFPI held no proof that the IP address owner – the defendant – was the same person that carried out the infringements. This fact – that an IP address does not positively identify an infringer – is the same worldwide.

The lawyer for the defense, Per Overbeck, who also successfully defended the two women who won their ‘wireless defense’ case in another of Denmark’s higher courts, noted a difference in the cases, but one which didn’t affect the outcome for the defendants:

“The two women who were acquitted by the Østre Landsret, were in a household with multiple computers, so more people in the household had access to them,” he said. “The man in Randers was living alone in his apartment and had only one computer, but his apartment is in a complex so in principle many others can access his Internet connection.”

Although IFPI lawyer Torben Steffenson has yet to comment on the ruling, he is expected to say that the IFPI does not accept the decision of the High Court, and that they will take the case to the Supreme Court in order to win the case.

That is unlikely to change the fact that in these cases the burden of proof is with the plaintiff.

Source: IFPI Loses Another P2P ‘Wireless Defense’ Case

The IFPI wanted to be able to hunt down file-sharers, report them to their ISP and have them implement a so-called “3 strikes” policy. They proposed that the first time someone got caught sharing copyrighted files, they would receive a warning from the ISP, the second time they would have their Internet connection slowed down. After a third warning, or strike, the user would be disconnected from his ISP and banished from the Internet.

ISPs in the UK recently reached an agreement with the IFPI to send out warnings to alleged file-sharers, but rejected any further sanctions against their customers such as speed capping or disconnection. However, according to a Comon report, the Danish ISPs have rejected the proposals completely. They say they will not take part in “detection and monitoring activities” and believe that the proposals would constitute a contravention of the law, and would upset the balance between the interests of the individual and economic interests.

“The Internet must be protected as a credible media, where each citizen can feel comfortable with the certainty that he will be on an equal footing with other media, such as confidentiality of correspondence in the mail, etc,” said the statement. “The proposals that have been seen by others in the European debate, which have also been raised in Denmark – for example, to disconnect users or deny users Internet access – will counteract this objective, and is in no way proportionate to the situation.”

President of the Telecommunications Industry Association Jens Ottosen says the plan presented by the IFPI to the Ministry of Culture has a number of serious weaknesses. He believes that the rights holders cannot accurately identify people who are engaged in unauthorized file-sharing. Among other things, the IFPI model of warning/slowing/disconnecting an IP address, NOT a person, means that even if the owner of an Internet connection did nothing wrong, they would be the one who got punished. Those who are the victim of a wireless hacking are equally vulnerable, something which the ISPs aren’t prepared to accept, and neither are the courts.

“We are very divided,” said Ottosen. When asked if there is a chance of reaching any type of voluntary agreement with the music industry, he added, “I can’t imagine.”

Thanks to Peter_Pan

Source: Danish ISPs Reject Anti-Piracy Proposals

The cases went to court and were heard this Friday, and to the file-sharing masses of Denmark, it turned out to be a very important day. The women did not deny the claims that unauthorized file-sharing had taken place on their Internet connections but stated clearly that they were not the ones carrying it out.

They claimed that their Wi-Fi had been piggybacked by persons unknown but the music industry didn’t care. Rather like the lawyers chasing the UK’s alleged pinball pirates, they asserted that an Internet subscriber is responsible for what others do on their connection, and it was up to the women to prove that they had not shared music with others. The court didn’t agree and acquitted the women of all charges.

Lawyer Per Overbeck told Ritzau: “It is an unusually clear and precise judgement. It is the plaintiff, who has the burden of proof. Many who have received letters with claims have been given the impression that they were required to pay. But we now have the court’s word for that, they do not [have to pay]. It is not enough to say that you are guilty of piracy due to owning a particular Internet access point.”

Piratgruppen, a pro-sharing group and antithesis of Antipiratgruppen, was delighted with the verdict, with spokesman Sebastian Gjerding inviting the anti-piracy outfit to drop all claims of compensation against file-sharers.

“They can not continue to send these demands to people. Antipiratgruppen and the IFPI should send an apology instead. It is an absurd claim that an Internet subsciber must take responsibility for the actions of others. Many networks can be attacked and abused.”

Antipiratgruppen, on the other hand, thinks this is a bad decision by the court and refuses to send out apologies. Their lawyer, Torben Steffensen, says this is a matter for the Supreme Court to decide. “We do not believe that this law is appropriate and we disagree with this decision,” he said. “There should be a law that protects artists from losing income due to piracy. Therefore we would like to have the Supreme Court deal with the issue.”

However, lawyers for the two women doubt the case will end up in the Supreme Court, since a lower court and now the High Court has ruled in the same way – it is the plaintiff who has the burden of proof.

There was a similar decision in Germany recently, and if Topware Interactive and Davenport Lyons have the guts to take on a defendant in the UK who actually fights back with a ‘wireless defense‘, there could be one there too:

“The onus is on the party bringing the action to convince the court on a balance of probabilities that the person being sued is responsible for the infringement,” says Struan Robertson, a technology lawyer with prominent law firm Pinsent Masons. “The legal wrong isn’t that you left your network open, it’s the file-sharing.”

Source: Danish File-Sharers Not Responsible For Wi-Fi Theft

A crucial factor in the ruling is thus that the ISP commits copyright infringement in their routers when they allow access to The Pirate Bay. An absurd claim of course, and even more serious, it opposes the Infosoc Directive, that formed the basis of the Danish copyright law.

In in Article 5 of the Infosoc Directive it is clearly stated that “copying in routers” is allowed, as an exception to and a limitation of the rights holders’ exclusive rights. Even more so, this is non-negotiable, and every member state of the EU must accept it. Oscar Swartz, an Internet pioneer and writer in Sweden who has been researching the case extensively rightly argues that the Danish court misinterpreted the Directive in this case.

The misuse of the article in question has been confirmed by Cecilia Renfors, a Swedish judge and special governmental investigator who had the assignment to propose new legislation to combat unauthorized file-sharing. “She refers to the former opinion by the Swedish government and reconfirms that a Danish model would NOT be compatible with Article 5.1 in the Infosoc Directive. She also repeats the opinion that the Danish way actually nullifies the whole purpose of that Article,” Oscar writes.

The Danish ISP Business association has decided that they will challenge the decision in court. Ib Tolstrup, the director of the association said in a podcast interview with Computerworld that Tele2 is going to challenge the ruling, as they realize they are the only nation in Europe that talks about “copying in the routers”. Tolstrup further said that, if Denmark wishes to be a top IT nation, the topic must be put on the political agenda because a Google block is not far away if they do not challenge the courts decision.

In a comment to TorrentFreak Swartz said: “I am surprised that the Danish ISPs have simply accepted the rulings in Denmark when they are so obviously illogical and dangerous. The courts say that any network provider performs “copying” in their routers. If that is correct the consequences are enormous and The Pirate Bay and the two other cases in Denmark would just be the beginning.”

Swartz continues: “I think the case shows that we have to fight all the time. Stand up. Not back down. Work hard. Make research. Try to get the message out to media. What I miss in Sweden, and Denmark of course, is professors and lawyers who are also participating in the fight for communications freedom. Like in the EFF in the U.S. where top professors and lawyers donate time and knowledge to support cases in court. Where are they here?”

In a response to the courts decision, The Pirate Bay launched jesperbay.org. The site is named after Jesper Bay, the head of the Danish IFPI, and gives detailed instructions for affected customers on how to regain access to The Pirate Bay.

Interestingly, it turns out that the block by Tele2 didn’t have the effect that the IFPI was hoping for. On the contrary, Pirate Bay traffic from Denmark went up, instead of down. However, this case is about more than The Pirate Bay, it is about censoring the Internet.

Source: Danish Pirate Bay Block Breaks EU Law

The Pirate Bay team has already asked other BitTorrent admins to stand up against the IFPI lobby, and arranged a meeting with Tele2 to discuss the current events. Pirate Bay co-founder Brokep told TorrentFreak in a response: “I hope the torrent community understands what this will do to Danish people. It will also act as a very bad precedent for the European Union, and I hope everybody will fight this.”

At the moment, The Pirate Bay team is registering new (Danish) domains, to make sure people can still download .torrent files from the Bay when the ban is activated later today tomorrow. In addition the Pirate Bay will launch a campaign website, together with the Danish pro-piracy lobby “Piratgruppen”.

Sebastian Gjerding, spokesperson for Piratgruppen, a pro-piracy lobby whose goals are to reform current copyright law and protect consumers’ rights, is not pleased with the news. He told TorrentFreak: “The verdict is absurd. It will block access for danish users to the worlds largest distributor of culture and knowledge – copyrighted or not. It’s true that you can access copyrighted material through The Pirate Bay, as you can with Google or Rapidshare. Should they be blocked as well?”

“It’s very frightening that IFPI can get through the courts with something like this. In Turkey and China its the state that decides what information the people can access and what should be censored. In Denmark its apparently the record industry,” Sebastian adds.

This is not the first time a Danish ISP has been ordered to censor the Internet. In December 2006 A Danish court ruled against Tele2 in a similar case, and ordered the ISP to block all access to Allofmp3.com. According to the ruling, the ISP was willingly infringing copyright if their customers use AllofMP3 to download music.

IFPI has announced it will continue it’s battle against BitTorrent sites in Europe. Last month they tried to convince European lawmakers that ISPs should block access to websites such as The Pirate Bay, and block filesharing protocols, no matter what they’re being used for. Luckily, these proposals were rejected.

We will follow this campaign, and the response from Denmark closely.

Stay tuned for updates!

Source: IFPI Forces Danish ISP to Block The Pirate Bay