Supreme Court Ruling Makes Chasing File-Sharers Hugely Expensive

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A court ruling has not only sharply reduced the amount of compensation rightsholders can expect from Danish file-sharing cases, but has also drawn a line on evidential standards. To accurately claim their losses in future, rightsholders will have to gain physical access to an infringer's computer. A leading lawyer in the field says the costs will prove prohibitively expensive.

In 2005, anti-piracy group Antipiratgruppen (APG) and the underlying music group IFPI tracked a man who they say was sharing 13,000 music tracks via a Direct Connect network. The case moved through the legal system and went all the way to the Supreme Court.

The 6 year-old case has now been concluded and although the rightsholder plaintiffs in the case won their battle – albeit in a much smaller way than anticipated – the Court’s ruling is set to prove a huge setback to their overall war.

The case against the now 57-year-old was brought by APG on behalf of many IFPI-linked record labels and artists. As is so often in these cases, they had hoped for a punishing outcome in order to deter others. The rightsholders had originally demanded 440,000 kroner ($83,400) in compensation but that claimed amount was ultimately reduced to 200,000 ($37,900).

However, yesterday the Supreme Court decided that the defendant should pay only 10,000 kroner ($1,900), a major setback for the rightsholders who had hoped for a much higher precedent-setting amount on which to model future cases.

The compensation-limiting factor problem proved to be the reach of the evidence relied on by Antipiratgruppen. APG used techniques which scraped the index of the files said to be being made available by the defendant and then linked them back to his IP address, a method which has been acceptable in the past. But while the Court accepted that some sharing had occurred due to the defendant’s confession, it wasn’t satisfied that the index was an accurate representation of the files physically present on the defendant’s computer.

Per Overbeck, lawyer for the defendant, said that the lowered compensation award shows that it’s worth fighting back.

“The ruling demonstrates that it pays to be critical of Antipiratgruppen’s claims,” he said.

Speaking with Politiken, IFPI lawyer Johan Schlüter said that the Supreme Court decision to tighten the standard of proof in these cases could mean that Antipiratgruppen has to seize and investigate the defendant’s computer in any forthcoming cases, an expensive process that would require a bailiff, IT experts, and in some cases a locksmith.

“I will not directly say that we can not afford it, but it could be so expensive that it could mean we cannot pursue such matters,” said Schlüter. “We can not accept that we have become completely neutered, so we’ll now sit down with some IT people and think through what we can do to provide better documentation.”

Schlüter commented that the industry is in somewhat of a “cultural battle” with illegal copying and he could have a point. A recent moral standards study in Denmark found that a high percentage of the public found illicit downloading socially acceptable.


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