Court overturns ruling in audio book piracy case

Swedish broadband provider ePhone is not obligated to hand over customer information to five book publishers, according to a decision by the Svea Court of Appeal which overturns a lower court ruling.

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The case, which ePhone initially lost in June in Solna District Court, is significant because it is the first to go to trial since the passage of a law designed to crack down on internet piracy in Sweden.

The law, which is based on the EU’s Intellectual Property Rights Enforcement Directive (IPRED), came into force on April 1st and says that internet providers can be forced by a court order to provide data about customers targeted in copyright infringement investigations.

“After all that’s been written that we should have released the information, it actually feels really nice that the court has ended up agreeing with what we’ve said the whole time: that the evidence wasn't good enough. I think it’s just great,” said ePhone CEO Bo Wigstrand to the TT news agency following the ruling.

ePhone argued that the five audio book publishers who filed the lawsuit had not been able to prove that anyone other than users from Sweden’s Anti-Piracy Bureau (Antipiratbyrån) had accessed a server containing sound files for 27 titles which the publishers claimed had been made available for downloading by the general public.

The appeals court agreed with ePhone, finding that the book publishers failed to show that there was probable cause to believe copyright infringement had occurred.

In overturning the lower court’s ruling, the Svea Court of Appeal argued that the copyright protected material on the server, which was linked to an ePhone customer, had not been made available to the public or even to a select group of people.

Since users were required to log into the server and there had been no investigation to indicate that login information had been widely shared, the court concluded that the publishers had not convincingly shown that the audio books had been available to the public.

“This is a real shame and it really complicates our operations, which are based on copyright and on protecting copyrighted material,” Shadi Bitar, CEO of Earbooks, one of the publishers behind the law suit, told TT.

The main issue in the case was whether or not the audio books on the server really were accessible by the public.

“Our assessment is that it has not been shown that there is probable cause to believe that the material was available to the public. It’s also possible that only a limited group of people had access to the sound files,” said appeals court judge Ulrika Ihrfelt to TT.

The four-judge panel which presided over the appeal was split 2-2 following initial voting on whether or not to overturn the case, meaning the case was ultimately decided by the added weight given to the court’s presiding judge, who ruled in favour of ePhone.

The court of appeal’s ruling can be appealed to the Supreme Court.