Principle ruling: Film producers are encouraged to continue the dialog about illegal download
According to the court, it is important that the rights holders continue the dialogue with telecom companies' subscribers in cases of illegal download and streaming. The ruling is a victory for the rights holders, says attorney at law Jeppe Brogaard Clausen from NJORD Law Firm.
In the ruling of the District Court in Frederiksberg, the court emphasizes that it is important that the rights holders have a dialogue with the telecom companies' subscribers, and that both large and small infringements are subject to the rights holders’ obligation to investigate.
The court also confirmed there is a valid legal basis when lawyers on behalf of licensees - such as film and television producers - send out letters to telecom companies' subscribers to investigate suspicion of illegal download or streaming.
NJORD Law Firm: A victory for the producers
For the last three years, NJORD Law Firm, on behalf of Scandinavian and international film producers, has sent letters to individuals whose IP addresses have been used to illegally download films and TV shows. Therefore, it is a victory for both NJORD Law Firm and the producers when the court agrees that the fight for rights is both legitimate and important.
Attorney at law and partner Jeppe Brogaard Clausen from NJORD Law Firm, therefore, welcomes the decision:
"It's an important victory for the producers so that they can continue the fight against illegal download and streaming, where we have achieved a drop of between 15 and 20% in 2017. It is a job that demands that we have a dialogue with those who have illegally downloaded or streamed content belonging to the rights holders or those who are aware of the specific circumstances."
Obligation to investigate - without a lower threshold
Both the court and the Danish Data Protection Agency emphasize that the information regarding subscribers from the telecom companies is necessary for the rights holders to initiate their investigations by sending letters to subscribers. In fact, the court went as far as imposing on producers an "obligation to investigate" without a lower threshold; an obligation to investigate the possibility of a settlement before the producers takes the case to court - no matter what the specific fiscal claim is. According to the court's ruling, it will be both "irresponsible and unnecessary" if the cases are not investigated first by means of a dialogue with the subscriber.
The court ruled in its decision that it is not a requirement that the subscriber will be summoned for the telecom companies to disclose information about the subscriber where illegal activity has been registered using the subscriber's IP address.
"We are encouraged by the court's clear legal assessment, which is entirely in accordance with the spirit we work in on behalf of the film industry, namely to investigate any suspicion through dialogue. As before, we will continue our practice of only taking cases to court if we cannot reach a fair agreement."
According to the court, if there is no initial dialogue with the subscriber, rights holders will become liable in cases brought before the courts - even if the rights holder wins the individual case.
Clear signal to the telecommunications industry
The telecom industry had argued that if telecom companies were to disclose names and addresses of subscribers, all cases should be followed up with litigation. However, today's ruling by the District Court in Frederiksberg is a strong signal to telecom companies that this view is not based on the wording of the law nor the legislative history of the legislation.
Therefore, attorney at law Jeppe Brogaard Clausen calls on telecommunications companies to cooperate more closely with the rights holders on the easy and safe disclosure of the information:
"If the process is automated, it will be easy for telecom companies to hand over large volumes of data, and it will also be safe for both subscribers and rights holders because an automated process is always safer than the telecom companies' current manual data disclosure."
On behalf of the rights holders, the lawyer therefore also urges the telecom companies to continue contributing to a reduction of the extent of illegal download and streaming:
"In principle, the seller of the stolen property is no better than the thief. So, in the long run, we expect the telecom industry to distance themselves not only from the websites that give access to illegal file sharing but also from subscribers that do not help prevent infringements or do not change their behaviour to become legal."
How can I prevent illegal downloads?
NJORD Law Firm has prepared 10 tips on how you and others in your household can avoid the most common pitfalls related to illegal file sharing/downloading of films on the internet and how to best protect yourself against illegal activity on your internet connection.
Find NJORD Law Firm's answers to the most frequently asked questions about illegal file sharing
Download or print the guide ”10 BEST ADVICES FOR LEGAL ONLINE FILMS”