Running a site offering or even linking to pirated movies and TV shows can be a hazardous occupation. It attracts the attention of copyright holders, the police, and in some cases even governments. For those running them these perils represent an occupational hazard.
But what if a site creates its own content and distributes that online, should that be a crime? That question is about to be answered in a unique case featuring fan-populated subtitling site Undertexter.se.
For ten years Undertexter (‘subtitles’ in Swedish) provided a somewhat useful service. Faced with what they perceived as a dearth of subtitling in local language, members of the site made their own translated subtitles for movies and TV shows. These were made available to all via the site.
However, in the summer of 2013 everything came crashing down. Under pressure from powerful Hollywood-based movie companies, police raided the site and seized its servers.
“The people who work on the site don’t consider their own interpretation of dialog to be something illegal, especially when we’re handing out these interpretations for free,” site founder Eugen Archy said at the time.
The authorities firmly disagreed, Archy was arrested, and the investigation into his site continued. Now, almost three years later, the Undertexter founder has been prosecuted for distributing infringing subtitles.
“I have indicted the person I say is behind the site Undertexter.se which made the dialogue from 74 films available to the public,” says prosecutor Henrik Rasmusson.
Of particular interest is the nature of the 74 movies referenced by the prosecution. Rather than tackle all of the subtitles on the site, the prosecution appears to have hand-picked a few dozen that gives them the strongest case, i.e those that relate to movies that weren’t commercially available in Sweden at the time.
The underlying suggestion is that those who created the subtitles either managed to legally view them in other regions or more likely carried out their translation work from pirate copies available online. Also, since the majority of Undertexter’s traffic came from Sweden, it’s likely that users of the site married the subtitles up with pirate copies.
Archy does not deny that he founded and operated the site, nor does he refute claims that he made some money from his activities, largely through on-site advertising. However, he does believe that offering fan-created subtitles is not a crime.
Unsurprisingly, Rasmusson strongly disagrees and even suggests that a prison sentence could be a possible outcome of this prosecution.
“This particular type of case, with pirate subtitles for pirate movies, has not been tried before. But the scale is at such a level that the penalty does not stop at fines, but imprisonment. It could be a suspended sentence,” Rasmusson says.
Soon it will be up to the court to decide whether distributing fan-created subtitles is a crime in Sweden. Experts have already weighed in on the case with Sanna Wolk, an associate professor of civil law at Uppsala University, noting that the devil could be in the detail.
“The core issue is whether the lyrics count as independent works or pure translations. If they follow the script, it’s a copyright violation to distribute them without permission, but if they’re self-published, it is not,” Wolk noted earlier.
“It is difficult to say where the exact line is. Subtitles need to be considered on their own merits to make an assessment.”