Sweden Supreme Court: Don’t Presume Prison Sentences For Pirates

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In the wake of a case involving the administrator of a now-defunct private torrent tracker, Sweden's Supreme Court has handed down an important ruling. Following requests from prosecutors seeking jail sentences for copyright infringement, the Court has ruled that the offense is not one where the presumed sentence should be imprisonment.

The trend over the past several years is for prosecutors to present copyright infringement offenses as serious crimes, often tantamount to those involving theft of physical goods.

This has resulted in many cases across the United States and Europe where those accused of distributing or assisting in the distribution of copyrighted content face the possibility of custodial sentences. Over in Sweden, prosecutors have homed in on one historical case in order to see where the boundaries lie.

Originally launched as Swepirate, ‘Biosalongen‘ (Screening Room) was shut down by local authorities in early 2013. A 50-year-old man said to have been the main administrator of the private tracker was arrested and charged with sharing at least 125 TV shows and movies via the site, including Rocky, Alien and Star Trek.

After the man initially pleaded not guilty, the case went to trial and a subsequent appeal. In the summer of 2015 the Court of Appeal in Gothenburg sentenced him to eight months in prison for copyright infringement offenses.

The former administrator, referenced in court papers as ‘BH’, felt that the punishment was too harsh, filing a claim with the Supreme Court in an effort to have the sentence dismissed.

Prosecutor My Hedström also wanted the Supreme Court to hear the case, seeking clarity on sentencing for these kinds of offenses. Are fines and suspended sentences appropriate or is imprisonment the way to deal with pirates, as most copyright holders demand?

The Supreme Court has now handed down its decision, upholding an earlier ruling of probation and clarifying that copyright infringement is not an offense where a custodial sentence should be presumed.

“Whether a crime should be punished by imprisonment is generally determined based on its penal value,” a summary from International Law Office reads.

“If the penal value is less than one year, imprisonment should be a last resort. However, certain crimes are considered of such a nature that the penalty should be a prison sentence based on general preventive grounds, even if the penal value is less than one year.”

In the Swepirate/Biosalongen/Screening Room case, the Court of Appeal found that BH’s copyright infringement had a penal value of six months, so there was no presumption for a custodial sentence based on the penal value alone.

Furthermore, the Supreme Court found that there are no legislative indications that copyright infringement should be penalized via a term of imprisonment. In reaching this decision the Court referenced a previous trademark case, noting that trademark
infringement and copyright infringement are similar offenses.

In the trademark case, it was found that there should be no presumption of imprisonment. The Court found that since it is a closely related crime, copyright infringement offenses should be treated in the same manner.

According to an analysis of the ruling by Henrik Wistam and Siri Alvsing at the Lindahl lawfirm, the decision by the Supreme Court represents a change from previous case law concerning penalties for illegal file-sharing.

The pair highlight the now-infamous case of The Pirate Bay, where three defendants – Peter Sunde, Fredrik Neij and Carl Lundström – were sentenced to prison terms of eight, ten and four months respectively.

“In 2010 the Svea Court of Appeal concluded that the penalty for such crimes should be imprisonment. The Supreme Court did not grant leave to appeal,” they note.

“The Supreme Court has now aligned the view on the severity of IP infringements. This is a welcome development, although rights holders may have benefited from a stricter view and a development in the opposite direction.

The full ruling is available here (pdf, Swedish)

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