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Danish High Court ruling on data retention use and file sharing cases

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Danish High Court ruling on data retention use and file sharing cases

Postby MrFredPFL » Wed Jul 11, 2018 9:40 pm

Story :

On 7 May 2018, the Eastern High Court in Denmark delivered a ruling that internet service providers (ISPs) are not required to disclose subscriber information in file sharing cases. This represents a major change of the previous legal practice in Denmark, where rightsholders were routinely granted access to subscriber information for alleged file sharers, even if the identification required access to retained data from mandatory data retention.

Two Danish law firms have specialised in legal action against file sharers in cooperation with the German file sharing monitoring company MaverickEye UG, which is well known from similar activities in other European countries. MaverickEye monitors BitTorrent file sharing networks and collects IP addresses of the participants in the BitTorrent swarm. In order to verify that the copyrighted work is made available from the IP address in question, a small piece of the file is downloaded using a modified BitTorrent client. For each copyrighted work, MaverickEye provides information about IP addresses and timestamps to the relevant rightsholders or, in most cases, the specialised law firms that represents them. The next step is to seek a court order requiring the ISPs to identify the actual subscribers that have used the IP addresses at the specific time. This is the critical step and legal practice varies among EU Member States.

If the subscriber names and addresses can be obtained from the ISPs, the law firm can either file a lawsuit demanding compensation for copyright infringement or send a letter to the subscriber with a proposed settlement for the case. The latter is generally the preferred option since lawsuits are expensive, and the alleged copyright infringement using BitTorrent is often limited to a single film or TV-series episode/season. In Denmark, the settlement offer from the law firm has typically been a payment of 200 to 300 euros for a single film. Only a handful of lawsuits have been filed with Danish courts, so most claims have either been settled or dropped if the subscriber denies having taken part in the alleged file sharing activity.

Based on Danish case law for three file sharing cases at the two High Courts around 2008, the subscriber does not automatically become legally responsible for file sharing from the IP address. The rightsholder must prove who has committed the file sharing act in order to obtain compensation. This burden of proof can be very difficult to meet if the subscriber for instance has an open WiFi network, has allowed guests to use his/her internet connection, or if there are several persons in the household. Most subscribers are probably not aware of this, so it is quite likely that many cases have been settled by paying the offered settlement amount of 200 to 300 euros.

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