Norway – Can the Copyright Industry Prosecute Copyright Infringers?

There’s an interesting case that is already developing in Norway. A film was leaked online and the copyright industry in the country demanded that police should take action. After being signalled that the police didn’t want to go after the user, the industry turned to the Norwegian courts. The unusual part? Critical documents surrounding the case have been withheld from the public to supposedly prevent spoliation of evidence.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

Fribit, a digital rights organization in Norway is reporting and translating an interesting case into English and the details in the post are quite interesting.

A film by the name Max Manus was leaked onto the internet and distributed via P2P. Nothing really new given that this kind of thing happens all the time. The local media then reported on the leaked movie. Again, nothing that hasn’t happened before. The entertainment industry vowed that they would track down and prosecute the individual responsible. Doesn’t happen as often, but another thing that isn’t entirely new. The industry then tried (and failed) to get police to act on it. Afterwards, they went to court with an IP address they found and demanded that subscriber information be turned over. Once a ruling was handed down, the court documents were withed from the public supposedly to prevent a “spoliation of evidence” All this happening in Norway? Judging by the article, this seems to be a new thing.

A quick glance at all the facts that has happened so far, one could guess that the entertainment industry looked up the film on a network like Fast Track, picked an IP address that was a source that also happened to be in Norway and decided to prosecute that person. This, of course, isn’t necessarily fact but the points do present this hypothesis as a possible one – one that would never track down the leaker in the first place, just someone who happened to be uploading the film.

When answering a question about this just being a case of catching one pirate rather than some fundamental turn of events, Øystein Sættem of Fribit answered with this:

No, this case entails whose responsibility it is to apprehend the pirate, and which methods can be used. We have a ternary power structure, like most other democracies. We have legislative, executive and judicial branches. This case is about who we recognize as our executive power. Simonsen Advokatfirma – the only private body in Norway with a license to monitor IP-addresses – has yearned for more power to deal with these cases themselves for a long time.

The backstory is that the Norwegian police often choose not to prioritize these cases. In itself this is a fully understandable argument; however, it’s controversial to have the people accept that a privately owned company with economical interests in a case receives executive powers – and that they can retrieve someones identity without the neutral scrutiny of the police. It’s beyond question that a party with self interest in a case never will be able to assess proof objectively.

The rules of law and justice are dwindling, especially since the idea that whoever owns the Internet subscription is the lawbreaker is a myth. How many of us are exclusively surfing with our own subscription? Accessing the Internet from libraries, schools, workplaces, a neighbours unsecured wireless network or from subscriptions owned by parents are just a couple of examples where this is not the case.

In addition to all of this there’s the fundamental principle of privacy. By connecting an identity to an IP-address anything a person engages in on the Internet could theoretically become visible for the other party. This becomes an issue the very second the other party is a biased one. An important part of the Internet and the freedom of speech is the possibility to shield oneself against condemnation for having controversial opinions.

When looking at cases outside of the country, this is almost an understatement. In the United States, the Digital Millennium Copyright Act (DMCA) has been largely credited for tens of thousands of alleged copyright infringers. With little to no evidence, Hollywood and big record labels have been able to subpoena an IP address, force the ISP to hand over customer information and pursue the owner of the IP address in court – overwhelmingly, the cases end up being settled out of court for a couple thousand dollars (hence why so many have considered this bullying or shakedown tactics) In essence, there barely is even court oversight in these cases and justice is quite easily left out of the scenes while someone essentially gets fined by the copyright industry.

The Canadian arm of the largely American record industry, known as the CRIA, saw what happened and jumped on board to try and have this sort of thing happening in Canada. Throughout 2004 – 2005, CRIA attempted to sue 29 unnamed alleged file-sharers. After going through the appeal process, CRIA lost the case, in part, because an IP address constitutes as private information and that the CRIA has to produce sufficient evidence to prove that these alleged file-sharers intended on infringing copyright – of which they also failed to do. Ever since this loss, CRIA, along with the help of Hollywood, the RIAA (again, the major record labels, only this organization resides in the US), the IFPI (International version of the RIAA), the CMPDA (Hollywood’s Canadian arm) and a few select US lawmakers as well as the US ambassador to Canada, among others, have been using national and international pressure to get Canada to reform copyright laws so a similar mass litigation tactic that has happened in the US will also occur in Canada (something that hasn’t been successful to date even though there were a few close calls).

Essentially speaking, once a third party can effectively open up the ISPs books and litigate people based on IP addresses, it’s game over. That paves the way to mass litigation (whether the people being sued are innocent or not) It’s the simple fact that few people can afford lawyers. As a consequence, there’s no real way to fight for your innocence in court unlike the major copyright industry which has seemingly unlimited financial resources to take mostly common people down. It’s easy to conclude that if Norway hopes to prevent an innovative disaster that has occurred in the US, the country needs to boost the strength of an amendment brought to the European Union in the telecoms package that recognizes internet access as a fundamental right as well as recognize that an IP address constitutes private information and that significant evidence actually needs to be brought forth before an IP address can be subpoenad. While Norway did convict one file-sharer in Norway back in 2005, we aren’t aware of the ‘several hundred notices were handed out today’ kind of news stories that came out of Norway that has been seen in the US.

Clearly, this could be the groundbreaking file-sharing case of a similar magnitude that Canada saw roughly 4 years ago.

Drew Wilson on Twitter: @icecube85 and Google+.

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