Pirate Bay conviction for assisted copyright infringement was justified, EU human rights court rules

The decision to declare the application inadmissible was taken unanimously, the court said

The European Court of Human Rights has rejected an appeal from two founders of The Pirate Bay, saying that a Swedish court was right to put copyright law ahead of their right to receive and impart information.

Pirate Bay co-founders Fredrik Neij and Peter Sunde were sentenced to one year imprisonment by the Stockholm District Court in April 2009 for crimes against the Copyright Act. Both were involved in running The Pirate Bay, a search engine that can be used to find "torrents," or small information files that enable the downloading of content on the BitTorrent peer-to-peer file-sharing system, often used to exchange pirated movies, music and software.

Together with other defendants they were also found liable for damages of approximately ¬3.3 million (US$4.3 million). Their prison sentences were reduced in November 2010 by the Svea Court of Appeal, but the joint damages were increased by that court to ¬5 million. The Swedish Supreme Court denied them an appeal hearing in February 2012.

In June 2012, Neij and Sunde lodged a complaint with the ECHR, alleging that they could not be held responsible for other people's use of The Pirate Bay. The initial purpose of the site was merely to facilitate the exchange of data on the Internet, they argued, according to a news release from the ECHR on Wednesday.

"According to them, only those users who had exchanged illegal information on copyright-protected material had committed an offence," the court stated. Relying on Article 10 of the European Convention on Human Rights, which covers freedom of expression, they complained that their conviction for complicity to commit crimes in breach of the Copyright Act had violated their right to freedom of expression, the court said.

"The Court held that sharing, or allowing others to share, files of this kind on the Internet, even copyright-protected material and for profit-making purposes, was covered by the right to 'receive and impart information' under Article 10," the court stated. However, the Court considered that the domestic courts had "rightly balanced the competing interests at stake."

The necessity to protect copyright rightly prevailed over the rights of the applicants to receive and impart information when the applicants were convicted, the court said. The court therefore rejected their application as "manifestly ill-founded."

The aim pursued by Neij and Sunde was profit-making and was covered by the right under Article 10, the court said. As a result, their conviction had interfered with their right to freedom of expression, it added. However, since the shared material was protected under the Copyright Act, the ECHR held that the interference of the Swedish authorities had been prescribed by law, it added.

In addition, considering that Neij and Sunde "had not removed the copyright- protected material from their website despite having been requested to do so, the prison sentence and award of damages could not be regarded as disproportionate," the court said. Therefore, the interference with the right to freedom of expression had been "necessary in a democratic society," it added.

The decision was given unanimously by a chamber of seven composed of judges from Liechtenstein, Germany, Slovenia, Ireland, Ukraine, Sweden and the Czech republic.

Loek is Amsterdam Correspondent and covers online privacy, intellectual property, open-source and online payment issues for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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