ISP Lands Supreme Court Win Over Copyright Trolls

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A Norwegian ISP has landed a key victory over copyright trolls who fought to discover the identities of people who allegedly shared files using BitTorrent. The case went all the way to the Supreme Court where it was decided that evidence of the alleged infringement was too weak when balanced against citizens' right to privacy.

Every day, millions of people use BitTorrent to obtain free movies, TV shows, and music but many aren’t aware that their activities can be monitored. Most monitoring is relatively benign but there are companies out there who make a living from threatening to sue file-sharers.

These so-called ‘copyright trolls’ share files along with regular users, capture their IP addresses and trace them back to their ISPs. From there, ISPs are asked to hand over the alleged pirates’ names and addresses so trolls can extract a cash settlement from them, but most ISPs demand a court process before doing so.

Over in Norway, a company called Scanbox Entertainment hired German anti-piracy outfit Excipio to track people sharing the movie ‘The Captive’. Between November 27 and December 1, 2015, the company reportedly found eight customers of telecoms giant Telenor doing so. While the numbers are small, initial cases are often presented this way to attract less attention in advance of bigger moves.

During December 2015, Scanbox sent a request to the Oslo District Court to force Telenor to hand over its subscribers’ information. It also asked the Court to prevent the ISP from deleting or anonymizing logs that could identify the alleged infringers.

In May 2016 Scanbox won its case, and Telenor was ordered to hand over the names and postal addresses of its subscribers. However, determined to protect its customers’ privacy (now and for similar cases in the future), the ISP filed an appeal.

At the Court of Appeal in September 2016, the tables were turned when it was decided that Telenor wouldn’t have to hand over the personal information of its customers after all. The evidence of the alleged infringements failed to show that any sharing was substantial.

But after coming this far and with lots of potential settlement payments at stake, Scanbox refused to give in, taking its case all the way to the Supreme Court where a panel of judges was asked to issue a definitive ruling. The decision just handed down by the Court is bad news for Scanbox.

In essence, the Court weighed Scanbox’s right to protect copyright versus Norwegian citizens’ right to privacy. If the former is to trump the latter, then any copyright infringements must be of a serious nature. The panel of judges at the Supreme Court felt that the evidence presented against Telenor’s customers was not good enough to prove infringement beyond the threshold. The panel, therefore, upheld the earlier decision of the Court of Appeal.

Torgeir Waterhouse of Internet interest group ICT Norway says that online privacy should always be respected and not disregarded as the rightsholders and their law firm, Denmark-based Njord Law, would like.

“This is not about enforcing copyright, this is about what methods are acceptable to use within the law,” Waterhouse says.

“This is an important decision that sends an important message to the licensees and Njord Law that the rule of law can not be set aside in their eagerness to deal with illegal file-sharing. We are very pleased that Njord’s frivolous activity has been stopped. We expect licensees to act responsibly and respect both privacy and the rule of law.”

ScanBox is now required to pay Telenor almost $70,000 in costs, a not insignificant amount that should give reason to pause before future trolling efforts get underway in Norway.

Full decision (Norwegian, pdf)

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