Year in Review: Individual Lawsuits Other Countries

Around the world lawsuits continue against individual file sharers with many countries taking a more stringent view of the privacy implications and evidential burdens which must be met in order to justify the disclosure of personal information based on IP addresses.

China (Hong Kong)
In September 2008 a 14 year old boy was arrested for sharing Cantonese pop songs on the internet and now faces a maximum 4 year jail term.[1]

Denmark
In October 2008 a Danish man was found liable for sharing 13,000 songs and was fined approximately $24,000 or around $2 per song after the court estimated the actual loss of money to the recording industry was around $1 per song and then doubled the damages.[2]

France
In July 2008 the French Court of Appeals of Rennes overturned two file sharing convictions on the basis that their IP addresses were obtained illegally.[3]

Germany
In July 2008 a German court held that an internet account holder could not be held liable for other peoples actions on an open WiFi network.[4]

Earlier, in June 2008, another German court ruled that file sharing lawsuits are unconstitutional because ISPs can not give out personal information unless it is for a serious criminal offence.[5] The evidence in the case was obtained by Logistep, then a criminal complaint commenced from which the account holder’s personal information was released and which was subsequently used to commence civil proceedings.[6] This process was held to be a violation of the right to privacy.[7]

Previously, in March 2008, it was reported that the Federal Constitutional Court of Germany ruled that file sharing lawsuits are not serious offences along the lines of terrorism and murder and that the disclosure of personal information on the basis of an IP address was a breach of the right to privacy.[8]

Iceland
In March 2008 it was reported that 9 Icelanders were convicted of sharing movies online. Eight of the accused were sentenced to 2 years probation with the other, Bjarki Magnusson given a 30 day suspended sentence. Together they must pay legal costs of ISK 2.6 million ($US39,000).[9]

Italy
In March 2008 it was reported that the Italian agency Garante della Privacy had ruled that it was illegal for Logistep, the piracy investigation firm, to collect IP addresses of alleged copyright infringers.[10]

Japan
In July 2008 Kazuhiro Maki, a 34 year old man in Japan was sentenced to 18 months in prison suspended for 3 years for distributing popular TV animation footage through the file sharing network, Share.[11]

Netherlands
In the Netherlands in June 2008 a court ruled that despite the legislative entitlement for citizens to download material from file sharing networks as part of the personal use exceptions to copyright infringement, that where the original source of the material is uploaded unlawfully, all downloads of that material are also unlawful.[12]

Sweden
In Sweden in May 2008 Andreas Karlsson was convicted of sharing 4,500 music files and more than 30 films and received a suspended prison sentence, a fine and was ordered to pay more than $7,000 in court costs.[13] Initially prosecutors had sought to make him liable for the distribution of 23,000 music tracks but questionable investigation techniques forced the withdrawal of some of the charges and resulted in a retrial.[14]

Switzerland
In March 2008 it was reported that Swiss authorities had ruled that IP addresses are considered private information and that it is illegal to conduct investigations based on matching IP addresses to personal information because they do not qualify as serious offences.[15]

UK
In the UK a man, Euan MacLay, received a letter indicating that he had been detected file sharing (a movie) despite the fact that he had cancelled his subscription to the ISP Freedom2Surf some six months earlier.[16] The investigation was based on the IP address which he had previously held with many commentators noting that this was yet another example of the poor quality of evidence on which many file sharing lawsuits are commenced.[17] Freedom2Surf eventually apologised.[18]

A number of file sharing investigations in the UK conducted by Logistep on behalf of the firm Davenport Lyons have been shown to be based on incorrect evidence.[19] In response to this the firm Lawdit Solicitors announced that it would be willing to assist those falsely accused of file sharing on a pro bono basis.[20]

Europe
In February 2008 the European Court of Justice determined the matter of Promusicae v Telefonica.[21] The Spanish music rights organisation, Promusicae, sought disclosure of personal information of file sharers from an ISP.[22] The court held that European law does not require member countries to have laws that force the release of personal information in these circumstances.[23] The court held that it was a matter of consideration for each member country. [24]

[1] TechDirt, Officials In Hong Kong Arrest 14-Year-Old For Music Sharing (24 September 2008) <http://www.techdirt.com/articles/20080922/1924292335.shtml> at 26 September 2008
[2] TechDirt, Danish Man Fined For Sharing Music, But At Around $2/Song (21 October 2008) <http://www.techdirt.com/articles/20081021/1312092608.shtml> at 22 October 2008
[3] ZeroPaid, French Court - File-Sharer's IP Addresses Were Illegally Obtained, Conviction Overturned (8 July 2008) <http://www.zeropaid.com/news/9618/French+Court+-+File-Sharer%27s+IP+Addresses+Were+Illegally+Obtained%2C+Conviction+Overturned> at 9 July 2008
[4] TechDirt, German Court Says That Open WiFi Owners Not Responsible For File Sharing Done By Others (10 July 2008) <http://www.techdirt.com/articles/20080709/1742241635.shtml> at 15 July 2008
[5] ZeroPaid, German Courts - P2p Lawsuits Unconstitutional (17 June 2008) <http://www.zeropaid.com/news/9561/German+Courts+-+P2P+Lawsuits+Unconstitutional> at 19 June 2008; P2p Blog, German court: P2P lawsuits are unconstitutional (21 June 2008) <http://www.p2p-blog.com/index.php?itemid=696> at 15 June 2008
[6] ZeroPaid, German Courts - P2p Lawsuits Unconstitutional (17 June 2008) <http://www.zeropaid.com/news/9561/German+Courts+-+P2P+Lawsuits+Unconstitutional> at 19 June 2008
[7] ZeroPaid, German Courts - P2p Lawsuits Unconstitutional (17 June 2008) <http://www.zeropaid.com/news/9561/German+Courts+-+P2P+Lawsuits+Unconstitutional> at 19 June 2008
[8] Digital Music News, German, Italian Courts Offer Pro-ISP Privacy Rulings (20 March 2008) <http://www.digitalmusicnews.com/stories/032008isp> at 23 March 2008
[9] The Register, File-swapping Icelanders slapped on writsts (6 March 2008) <http://www.theregister.co.uk/2008/03/06/icelandic_file_sharing_conviction/> at 7 March 2008
[10] Digital Music News, German, Italian Courts Offer Pro-ISP Privacy Rulings (20 March 2008) <http://www.digitalmusicnews.com/stories/032008isp> at 23 March 2008; TechDirt, Italy Says P2P Monitoring Firm Broke The Law -- But This Might Not Be A Good Thing (18 March 2008) <http://www.techdirt.com/articles/20080318/074818571.shtml> at 22 March 2008; Billboard.biz, Italian File-Sharers Let Off The Hook (17 March 2008) <http://www.billboard.biz/bbbiz/content_display/industry/e3i4b1f1f7f2a01d2b3c04136a266ca9813> at 19 March 2008
[11] Daily Yomiuri Online, Man receives suspended sentence for file sharing (25 July 2008) <http://www.yomiuri.co.jp/dy/national/20080725TDY02304.htm> at 28 July 2008
[12] PC World, Dutch court rules against law that allowed file downloading (27 June 2008) <http://www.pcworld.idg.com.au/index.php/id;1262747976> at 28 June 2008
[13] ZeroPaid, Swedish Man Convicted of Illegal File-Sharing (7 May 2008) <http://www.zeropaid.com/news/9463/Swedish+Man+Convicted+for+Illegal-File+Sharing> at 8 May 2008; TorrentFreak, File-Sharer Convicted in Sweden’s Biggest P2P Case (5 May 2008) <http://torrentfreak.com/file-sharer-convicted-in-swedens-biggest-p2p-case-080505/> at 6 May 2008 (note that these two reports differ as to the extent of the fine that was imposed).
[14] TorrentFreak, File-Sharer Convicted in Sweden’s Biggest P2P Case (5 May 2008) <http://torrentfreak.com/file-sharer-convicted-in-swedens-biggest-p2p-case-080505/> at 6 May 2008; TorrentFreak, Sweden’s Biggest File-Sharing Case Goes to Retrial Written (8 January 2008) <http://torrentfreak.com/swedens-biggest-file-sharing-case-goes-to-retrial-080108/> at 31 January 2008
[15] TechDirt, Italy Says P2P Monitoring Firm Broke The Law -- But This Might Not Be A Good Thing (18 March 2008) <http://www.techdirt.com/articles/20080318/074818571.shtml> at 22 March 2008
[16] ZeroPaid, UK ISP Warns BitTorrent User on Behalf of US Copyright Holder (3 September 2008) <http://www.zeropaid.com/news/9729/UK+ISP+Warns+BitTorrent+User+on+Behalf+of+US+Copyright+Holder> at 4 September 2008
[17] ZeroPaid, UK ISP Warns BitTorrent User on Behalf of US Copyright Holder (3 September 2008) <http://www.zeropaid.com/news/9729/UK+ISP+Warns+BitTorrent+User+on+Behalf+of+US+Copyright+Holder> at 4 September 2008
[18] ZeroPaid, UK ISP Warns BitTorrent User on Behalf of US Copyright Holder (3 September 2008) <http://www.zeropaid.com/news/9729/UK+ISP+Warns+BitTorrent+User+on+Behalf+of+US+Copyright+Holder> at 4 September 2008
[19] TechDirt, UK Law Firm Tries Suing As Many People As Possible For File Sharing (15 July 2008) <http://www.techdirt.com/articles/20080714/1551101673.shtml> at 16 July 2008
[20] TechDirt, UK Lawyer Agrees To Represent Falsely Accused File Sharers For Free (26 August 2008) <http://www.techdirt.com/articles/20080825/2333082095.shtml> at 28 August 2008
[21] EFFector, EU Law Does Not Require ISP to Hand Over Customers' Identity Data in Alleged Filesharing Case (6 February 2008)Vol. 21, No. 04 <http://www.eff.org/deeplinks/2008/01/eu-law-does-not-require> at 7 February 2008; The Register, EU data ruling slaps filesharers with red herring (31 January 2008) <http://www.theregister.co.uk/2008/01/31/eu_filesharing_bpi_data/> at 4 February 2008; TechDirt, EU Court Tells ISPs They Don't Have To Hand Over Downloader Names (29 January 2008) <http://www.techdirt.com/articles/20080129/134719110.shtml> at 31 January 2008; The Register, EU supremes: ISPs don't always have to finger filesharers (29 January 2008) <http://www.theregister.co.uk/2008/01/29/eu_supreme_civil_isp_filesharing_case_law/> at 30 January 2008; ZeroPaid, 'EU's Top Court ISPs Dont Have to Name File Sharers' (29 January 2008) <http://www.zeropaid.com/news/9229/EU%27s+Top+Court%3A+%27ISPs+Don%27t+Have+to+Name+File-Sharers%27> at 31 January 2008
[22] EFFector, EU Law Does Not Require ISP to Hand Over Customers' Identity Data in Alleged Filesharing Case (6 February 2008)Vol. 21, No. 04 <http://www.eff.org/deeplinks/2008/01/eu-law-does-not-require> at 7 February 2008; The Register, EU data ruling slaps filesharers with red herring (31 January 2008) <http://www.theregister.co.uk/2008/01/31/eu_filesharing_bpi_data/> at 4 February 2008; TechDirt, EU Court Tells ISPs They Don't Have To Hand Over Downloader Names (29 January 2008) <http://www.techdirt.com/articles/20080129/134719110.shtml> at 31 January 2008; The Register, EU supremes: ISPs don't always have to finger filesharers (29 January 2008) <http://www.theregister.co.uk/2008/01/29/eu_supreme_civil_isp_filesharing_case_law/> at 30 January 2008; ZeroPaid, 'EU's Top Court ISPs Dont Have to Name File Sharers' (29 January 2008) <http://www.zeropaid.com/news/9229/EU%27s+Top+Court%3A+%27ISPs+Don%27t+Have+to+Name+File-Sharers%27> at 31 January 2008
[23] EFFector, EU Law Does Not Require ISP to Hand Over Customers' Identity Data in Alleged Filesharing Case (6 February 2008)Vol. 21, No. 04 <http://www.eff.org/deeplinks/2008/01/eu-law-does-not-require> at 7 February 2008; The Register, EU data ruling slaps filesharers with red herring (31 January 2008) <http://www.theregister.co.uk/2008/01/31/eu_filesharing_bpi_data/> at 4 February 2008; TechDirt, EU Court Tells ISPs They Don't Have To Hand Over Downloader Names (29 January 2008) <http://www.techdirt.com/articles/20080129/134719110.shtml> at 31 January 2008; The Register, EU supremes: ISPs don't always have to finger filesharers (29 January 2008) <http://www.theregister.co.uk/2008/01/29/eu_supreme_civil_isp_filesharing_case_law/> at 30 January 2008; ZeroPaid, 'EU's Top Court ISPs Dont Have to Name File Sharers' (29 January 2008) <http://www.zeropaid.com/news/9229/EU%27s+Top+Court%3A+%27ISPs+Don%27t+Have+to+Name+File-Sharers%27> at 31 January 2008
[24] EFFector, EU Law Does Not Require ISP to Hand Over Customers' Identity Data in Alleged Filesharing Case (6 February 2008)Vol. 21, No. 04 <http://www.eff.org/deeplinks/2008/01/eu-law-does-not-require> at 7 February 2008; The Register, EU data ruling slaps filesharers with red herring (31 January 2008) <http://www.theregister.co.uk/2008/01/31/eu_filesharing_bpi_data/> at 4 February 2008; TechDirt, EU Court Tells ISPs They Don't Have To Hand Over Downloader Names (29 January 2008) <http://www.techdirt.com/articles/20080129/134719110.shtml> at 31 January 2008; The Register, EU supremes: ISPs don't always have to finger filesharers (29 January 2008) <http://www.theregister.co.uk/2008/01/29/eu_supreme_civil_isp_filesharing_case_law/> at 30 January 2008; ZeroPaid, 'EU's Top Court ISPs Dont Have to Name File Sharers' (29 January 2008) <http://www.zeropaid.com/news/9229/EU%27s+Top+Court%3A+%27ISPs+Don%27t+Have+to+Name+File-Sharers%27> at 31 January 2008