Questions and answers regarding illegal file sharing and download

Who is NJORD Law Firm representing?

NJORD Law Firm represents a larger group of film producers - some big and others smaller - and both producers in and outside Scandinavia. For instance, producers include Nu Image, Voltage Pictures LLC and Zentropa. The films, NJORD Law Firm represent, are both well-known films such as The Expendables 3, Olympus Has Fallen and Department Q: A Conspiracy of Faith, lesser-known films such as Autómata and The Cobbler, as well as films featuring famous actors such as Sylvester Stallone, Nicole Kidman, Birgitte Hjort Sørensen, and Nikolaj Lie Kaas.

All have faced the challenge of the films being watched by many and unfortunately not always through media that have permission to show the films. If you watch or download films from networks such as Popcorn Time, BitTorrent or The Pirate Bay, you have watched the film illegally.

Each time a film is downloaded and shared illegally on the Internet, the film producer misses out on the revenue generated through the cinemas, the sale of DVDs, and the use of legitimate streaming services. This means that the film industry loses its business base and quite simply there is less money to produce new films and TV-series.

What is "file sharing"?

There are many different ways you can share files. One of the most popular ways is through a peer-to-peer (P2P) network that connects computers to each other over the Internet. Each computer in the network can both handle server and client for another PC in the network. For download, data is received from a server over the Internet, while upload of data is transmitted to a server over the Internet. File sharing consists of both download and upload of a file.

All that is required for sharing files over a P2P network is an Internet connection and a P2P application such as BitTorrent, uTorrent or Popcorn Time. These programs are often used to share and download illegally copied films, music, games, e-books, etc. Technically, files are shared while they are downloaded, which one can actively seek to prevent, but is difficult to avoid.

A special form of file sharing is called streaming. The sharing occurs when a user uploads a file, for example a feature film to the network from which other users can stream the file by downloading small pieces of this file. The file is split into a number of smaller pieces to increase the speed of streaming. These small pieces are copied and stored on each user's computer’s hard drive, and the copies are redistributed in the network, after which accessibility is further increased for users in the network trying to download the specific file. The more users that are sharing the file, the faster the file can be streamed/downloaded.

When a file is shared as exemplified above, the file is assigned a unique "hash value" in the file sharing network. This value can be compared to a fingerprint and the specific hash value is determined by the file's binary content. The user’s download and sharing of a specific file in the network can thus identified via the hash value. This will only allow download and sharing of this specific file.

The file's hash value also makes it possible to measure how many IP addresses are sharing and downloading the specific file. Such measurement shows what is referred to as "swarm size" and "audience size".

The total number of IP addresses in the network that download and share a specific file at a specific time is called “swarm”. Access to that swarm is subject to downloading and sharing the same file as the other IP addresses in this swarm. The speed of a download depends largely on how many users are in that swarm and thus how many are sharing the specific file at the same time.

While swarm size gives a snapshot of file sharing, a measure of audience size shows how many IPs are sharing and downloading a specific file over an extended period, such as over a 3-month period. Thus, audience size measurement can be used to indicate a general tendency for illegal sharing of a film.

Why is file sharing illegal?

The legal basis of the Copyright Act

Downloading and sharing of copyrighted material is not permitted if the action is performed without the consent of the right holder, cf. article 2 of the Copyright Act. According to article 12, section 4, no. 2, it is not permissible to engage another person to make copies of cinematographic works, and illegal sharing of files in a file sharing network is thus included.

Illegal Sites

Popcorn Time, BitTorrent, uTorrent, etc. are all file sharing networks that offer films without the consent of the rightsholder. The existence of these file sharing networks is contingent on users sharing and downloading copyrighted material with each other.

If you are not sure if a site / service is legal, you can consult NJORD's 10 best advices for legal online films.

Legal Sites

To view a list of legitimate services, please refer to the following: https://www.sharewithcare.dk/digitale-tjenester/ (in Danish)

I subscribe to legitimate services like Netflix, Viaplay, HBO, etc., so why are you writing me?

We are not contacting you because you have watched films or TV-series via one of these services. We only contact proprietors of IP addresses that are registered active in a file sharing network, such as Popcorn Time or BitTorrent, where the film has been made available without the consent of the rightsholder.

Often, subscriptions to legitimate services will also be geographically limited, which is also called "geo-blocking". Geo-blocking means that a specific film / TV-series, that for instance may be available in the United States, but not available in Denmark, will be blocked by the legitimate services in the areas / countries subject to geo-blocking. If a specific film is subject to geo-blocking in your area / country, any attempt to circumvent this (e.g., using a VPN connection) will thus constitute an illegal infringement of the rights to the film. In most legitimate services, geo-blocking will usually mean that the film is not included in the catalogue of films that can be selected.

If you are not sure whether a site / service is legal, you can consult NJORD's 10 best advices for legal online films.

Liability for illegal activity on the Internet

Am I responsible for someone else's use of my Internet connection?

As a rule, you are not responsible for others’ use of your Internet connection, but our view is that you as the subscriber are liable to investigate and secure the Internet connection for which you are paying.

However, the actual circumstances will determine if you are liable for your Internet connection being used for illegal activities.

Our view is that under certain circumstances you can be held liable if there are others who have used your Internet connection for illegal activities. This assessment is based on several previous decisions in court cases from Denmark and Finland.

In 2008, a judgment was issued in the High Court of Eastern Denmark in a case (B-19-08) about a person who had a wireless Internet connection without encryption in 2004 - thus the Internet connection was not protected by a password. The High Court did not find sufficient evidence that the registered owner of the Internet connection had made musical works available via the Internet connection. The High Court found that others could have abused the Internet connection and that the owner was not liable for not having the Internet connection not protected by a password.

Unlike then, wireless routers are nowadays delivered with encryption enabled. Thus, it has become a default setting that there are passwords on all wireless routers provided by an Internet service provider. This means that actively disabling the password on the router is required to open the Internet connection. You can also give others access to the Internet connection by handing out the password.

In our opinion, you can be held liable for copyright violations - such as illegal download of films - if you give others access to the Internet connection by handing out the password or by disabling the password on the router, knowing that illegal download / file sharing of films may occur or have occurred. This type of infringement requires access to the Internet connection over a long period of time and the use of special P2P software.

In a Finnish ruling from July 2016, there was also a ruling on the liability for having a wireless Internet connection without a password. The Finnish court found that the proprietor of the IP address had shared and downloaded films and TV-series, even though the Internet connection did not have a password. This was an "open wi-fi" and the proprietor was held liable to pay more than EUR 32,000 as compensation and to cover legal costs for sharing ten episodes of the TV-series "Black Sails" and the film "A Walk Among the Tombstones" via BitTorrent.

The Finnish proprietor of the IP address emphasized that his wireless Internet connection was open to all and that, therefore, anyone could have downloaded and shared films and TV-series via his Internet connection. However, following an assessment of the specific circumstances, the Finnish court found that – despite it being open – the proprietor was liable for the copyright infringements via the Internet connection. You can read the court decision in Finnish here.

In another Finnish case from February 2017, the proprietor of an IP address from which file sharing had occurred was not found liable for the illegal activity. In this case, the Finnish court  did not find sufficient evidence that the films and TV-series in question had been shared from the proprietor's own computer. The courts also found that the proprietor of the IP address was not liable for other’s illegal activity using the Internet connection. In its decision, the courts emphasized, that it was not possible to prove that the Internet connection had been protected by a password, and therefore it could not be assumed that the proprietor was aware of the illegal activity from his Internet connection. The case was appealed to the 2nd court in April 2017. You can read the court decision in Finnish here.

Am I as parent liable for my child's illegal file sharing?

If your child becomes liable for damages (for instance in the case of illegal file sharing) you as the parent can be liable for your child's wrongdoings for up to DKK 7,500. It is the person who has the custody of a child living at home who is liable according to the Act on liability for children's liability.

The liability applies to any harmful act or omission for which the child becomes liable. It is not a condition that parents have failed to supervise the child or otherwise assume responsibility for the child's harmful action.

Liability also applies regardless of where and when the child has caused damage. This is also true even if, for example, the wrongdoing occurs while the child is on holiday with a mate or if it occurs while the child is home alone.

Parents may incur individual liability for the full amount of damages if they have neglected a duty to supervise the child properly, and this neglect has been the direct or contributory cause of the child causing the damage.

Different forms of illegal file sharing

In the following we will review the various forms of illegal file sharing that can make you liable as subscribers to an IP address.

Scenario 1: "I have seen / tried to watch the film myself."

- In this scenario, you are prima facie liable for wrongdoing consisting in the illegal file sharing.

Scenario 2: "My child has seen / tried to watch the film."

- If your child has seen / tried to watch the film, you can as parent be held liable for up to DKK 7,500 for claims for which your child becomes liable.

Scenario 3: "I have not even seen the film - could it be someone else in the household?"

- As a subscriber to the IP address, we believe you are liable to investigate who in the household may have seen / attempted to watch films illegally.

Scenario 4: "My have let someone else rent / borrow my residence"

- In rental / lending situations (i.e. through Airbnb), it may happen that renters / borrowers illegally download films using your Internet connection. We believe you are liable to investigate who may have watched / attempted to watch films illegally.

Scenario 5: "I have an open Internet connection that is not equipped with a password."

- If your Internet connection is open, others will be able to log in and then use the Internet connection to for example to watch / try to watch films illegally. If you are aware that others are using your Internet connection for illegal file sharing, you may be liable as the owner of the Internet connection based on a specific assessment.

Scenario 6: "What are the chances that I've been hacked?"

- The chances that you've been hacked are, according to the available statistics, usually very small. We rarely notice that ISPs are having problems with their customers being exposed to hacking.

If you are subject to hacking, the purpose will typically be to access your account information, network banking, etc. In our experience, a hacker will rarely use the Internet connection to watch films.

How does NJORD process my information?

Registration of illegal activity

Film producers use specialists who are responsible for collecting information on IPs that are used for illegal file sharing or download of films, the film producers hold the rights to.

Each viewing of films via the Internet is identified and traced to an IP address and the software can associate a specific time to a specific IP address. Among others, film producers use the software provider MaverickEye UG, who monitors and identifies data traffic to identify IP addresses that are file sharing or downloading illegally. For example, viewing or downloading a film via Popcorn Time or similar home pages or using file sharing programs such as BitTorrent, uTorrent or eMule, can be investigated and documented with a special IT tool.

MaverickEye UG's systems for monitoring file sharing networks and the active IP addresses herein have in a German court case been subject to an independent expert assessment conducted by Dr. Simone Richter. In a report, Dr. Simone Richter presented her considerations relating to this software as well as the validity of the collected data. The report concludes that the software is capable of monitoring traffic on file sharing networks, that the software accurately registers the time of data transfer, and that the software's mechanisms ensures that incorrect IP addresses are not collected. You can read the report here.

What is an IP address and is it my IP address in the letter?

An IP address is a unique address used for the connection to any given network. All devices connected to an Internet connection use the same IP address to access the Internet.

Your IP address today may not be the same as the IP address at the time when the film was viewed as IP addresses can be dynamic and change over time.

Your ISP has informed us that you were a subscriber to the IP address at that time, and that is only the information on which this letter to you is based.

Lawsuit Procedure

To obtain information about the proprietor of the IP address, including name and address, a so-called discovery order has been issued to the Internet service provider in accordance with the Administration of Justice Act. A discovery order is an obligation imposed by a judge on an Internet service provider to disclose information about the name and address of a subscriber.

Evidence of the illegal activity on the IP address is submitted to the courts, who then assesses the evidence before the Internet service provider is ordered to disclose the information.

The Internet service provider's information about the proprietor of the specific IP address at that time point then establishes the basis for our inquiry to the proprietor of said IP address.

Internet Service Provider - Logging of Information

Internet service providers are pursuant to article 5, section 2, no. 3 of the Logging Executive Order obliged to store information about the name and address of the proprietor of an IP address.

This is the reason why Internet service providers retain information on illegal activity using an IP address.

NJORD Law Firm's handling of information as a data processor

NJORD Law Firm processes information about IP address holders in accordance with the Processing of Personal Data Act. Read more here

What am I expected to do with NJORD's letter?

Am I obligated to answer?

NJORD Law Firm invites recipients of letters to respond to the inquiry. It is difficult for us to close the individual case if we have not received answers to our letters.

The Consumer Ombudsman in Denmark has, after many inquiries from recipients of letters from, among others, NJORD Law Firm, issued a press release addressing this question. The Consumer Ombudsman calls for the letters to be answered, including answers to the questions in the letters. You can read the Consumer Ombudsman's press release here.

Letters with similar content are sent in the other Scandinavian countries. In this connection, Finland’s Ministry of Education and Culture has published an overview of questions and answers concerning the letters on their website. Here the Ministry also calls for the letters not to be ignored. Further, the Ministry encourages that the proprietor of the IP address investigates whether members of the household or others with access to the Internet connection have committed the infringement specified in the letter. You can read the overview in Finnish here.

In Norway, the Consumer Council ("Forbrukerrådet"), unlike the other Scandinavian countries' consumer authorities and organizations, has called for recipients not to respond to the letter not to be answered by NJORD Law Firm. This is explained inter alia by: "This appears as solely as a threatening letter, trying to scare customers into paying". You can read the Norwegian Consumer Council's press release here. At NJORD Law Firm, we do not agree with the Norwegian Consumer Council, but we want to work with the Norwegian Consumer Council by providing more information about the work, we do. We therefore have held a dialogue meeting in Oslo with, among others, Forbrukerrådet.

In Sweden, Konsumentverket, the Swedish Consumer Agency headed by the Consumer Ombudsman, is in line with Denmark and Finland. Cecilie Norlander, a lawyer at the Consumer Agency, said: "If you consider yourself innocent, you do not have to pay anything and you always have the right to have the case tried before the courts”. It is apparent from the statement that you should not feel obliged to settle if you are innocent. You can read the article with the statement from Konsumentverket in its entirety here.

Should I call or send an e-mail to NJORD Law Firm?

We encourage recipients of out letters to send an email with answers to the questions in the letter to ip@njordlaw.com. We endeavour to answer phone inquiries, but we will not close any cases until we have received a written reply to our letter containing the name and case number. The request for written answers, even in the form of an e-mail, is to avoid any misunderstandings with regards to the information.

Should I settle?

The letter contains an offer for a final settlement and conclusion of the case.

A settlement is a legally binding agreement between the parties regarding the conclusion of the relationship based on the information available. The agreement finalises any issues relating to the specific film(s) concerned.

It is completely voluntary to make a settlement and your own independent decision. Professional advice in such matters is always advisable.

If you do not want to settle, the film producer will of course still be able to investigate the issue and may choose to file a lawsuit against you based on your infringement of the producer's copyright. NJORD Law Firm's task is to make the number of illegal downloads decline and, therefore, records in its investigations the number of films and the period of illegal downloads from the same address.

NJORD Law Firm has conducted legal proceedings in the Nordic region on file sharing and there are ongoing cases being brought before the courts. As litigation is costly for both parties, this is sought to be avoided.

How can I help or investigate?

NJORD Law Firm's letters contains information on the exact time and date of the illegal file sharing.

As the proprietor of the IP address, you can ask members of the household whether they have seen that particular film / TV-series.

Alternatively, you can check if members of the household have had guests or others who have had access to the Internet connection at that time.

Read more about how to avoid illegal downloads in NJORD's 10 best advices for legal online films.

Can I talk to the authorities?

As a citizen, you can contact several authorities.

First, you can contact the Consumer Ombudsman. However, the Consumer Ombudsman has chosen to shut down all inquiries regarding letters from NJORD Law Firm. You can read the press release here.

You can also file a complaint with the Danish Bar and Law Society’s Disciplinary Board ("Advokatnævnet"), which handles complaints against lawyers. We may disclose that a recipient of a letter from NJORD Law Firm filed a complaint with the Disciplinary Board alleging violation of the rules for lawyers' professional conduct (good lawyer practices) pursuant to article 126, section 1, of the Administration of Justice Act. The Disciplinary Board dismissed the complaint and found that the request to proprietor of the IP address had been warranted.

In Finland, the Finnish Bar Association’s Disciplinary Board regularly investigates similar cases as to whether letters sent in Finland violate their rules on good lawyer practices.  The Disciplinary Board have issued an overview of questions and answers regarding the letters. Per February 28, 2017, the Disciplinary Board has ruled in nine cases. In eight of the cases, the board considered that it was not in violation of good lawyer practices to send letters with this content. In the latter case, the lawyer was reprimanded for sending more letters, even though the recipient, at the first letter, had announced his wish to try the case before the courts. You can read the review in Finnish here.

You may also contact the police. The letter from NJORD is solely a civillaw offer to settle the case and it is not a fine or an initiation of a criminal case. The Danish police have already seen the letters and are in line with the Finnish police. You can read the Finnish Police’s Press Release here.

Rather than seeking advice from any of the above, we encourage you to contact a lawyer or seek other professional legal advice.

Can I use standard response I found on the Internet to answer letters from NJORD Law Firm?

We are aware that there currently are several guides available for responding to our inquiry. These have not been written by authorities, established interest groups, or lawyers. Following advice based solely on these guides is not recommended, and the use of standard replies to our letters may be misleading in the process of disclosing the correct context.

We perceive the following standard responses as incomplete, incorrect and unfortunate as replies to our letters and do not consider them good advice. The use of such terms is recorded separately and can lead to further investigation:

• I have not downloaded the films or TV-series mentioned in the letter
• I am surprised by your offer to settle
• I am not aware if others have downloaded the films in question
• I do not want to contribute further to the case's clarification
• I ask you to forward the specific and strong evidence immediately and, if not, consider the case closed

Has NJORD Law Firm issued writs in cases regarding illegal file sharing?

NJORD Law Firm has issued writs in cases in cases regarding illegal file sharing.

In 2016, one of the recipients of a letter from NJORD Law Firm was ordered to pay DKK 5,000 to a film producer for the unlawful file sharing of one film.

You can read the review of judgment in Berlingske and MetroXpress.

How has the amount been calculated?

The amount is estimated to cover our client's loss of payment for the illegally downloaded film and for sharing the film. Thus, the amount includes both the fact that you made the film available to yourself and that you made the film available to others by sharing it on the Internet.

The amount is based on case law in the area and calculated for file sharing of one film. In our opinion, the amount is substantially less than a total claim if the case goes on to court.

There are many elements in such a case and the illegal download and illegal file sharing is not just an alternative to going to the cinema. Neither does film producer's loss only correspond with the price of a ticket to the cinema or the purchase of a film for DKK 150. By using illegal download services to download the film, other people have been given the opportunity to watch and download the film and thus this makes the film accessible to a large audience. You can read more about this at the Rights Holders’ Alliance's website.

How can I avoid illegal downloads?

NJORD Law Firm has prepared 10 good advices on how you or others in your household can avoid the most common pitfalls for illegal file sharing / downloading of films on the Internet and how you best protect yourself against illegal activity on your Internet connection.