An end to copyright blackmail letters in Finland?

By EDRi · June 28, 2017

On 12 June, the Finnish Market Court ruled in a case Copyright Management Services Ltd vs. DNA Oyj that Internet Service Providers (ISPs) are not obliged to hand out the personal data of their clients based only on the suspicion of limited use of peer-to-peer networks. Stronger proof of significant copyright infringements need to be presented in order to obtain the data.

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Law firms have been sending letters to demand payments as damages for distribution of copyright-protected contents, and to threaten the people suspected of copyright infringement with legal proceedings. The ruling will put an end to this practice.

The Finnish Market Court has previously interpreted even the distribution of minor amounts of data in peer-to-peer networks as a “significant copyright infringement”. However, thanks to the case law of the Court of Justice of the European Union (CJEU), the court has now changed its interpretation. The CJEU has emphasised in its recent rulings that when evaluating the significance of the infringement, the concrete harm caused by the distribution done through a single IP address has to be taken into account.

The compensation claim brought to the court was based on approximately a thousand observations of cases in which films had been made available in BitTorrent peer-to-peer network. The court did not consider these cases to constitute a “significant amount”, because it was not possible to draw conclusions on the repetitiveness, duration, number of distributed works, and the concrete impact on other peer-to-peer users.

The seven judges decided unanimously to refuse obligation for the ISPs to hand out their clients’ personal data. Another important aspect of the decision was that the burden of proof for a “significant copyright infringement” was considered to be on the plaintiff, not the¬†defendant.

On the other hand, on 14 June 2017, the Market Court gave its decision in a case Copyright Management Services Ltd vs. Elisa Oyj, another Finnish ISP. The court stated in its decision that the ISP is obliged to retain its clients’ data for the purpose of releasing it later. The decision, however, emphasised that the purpose of retaining the data is not to grant the plaintiff the access to it, but to avoid the loss of the data until the possible release. This requirement to store consumer data is hard to reconcile with two Court of Justice of the EU rulings prohibiting suspicionless retention of communications data (the Digital Rights Ireland case and the Tele2 ruling) and one explaining the requirement to have a specific law when imposing restrictions such as data retention (the Bonnier Audio case).

Finnish Parliament argued over the copyright initiative (21.05.2014)

Finland: Common Sense in Copyright Law (24.04.2013)

Finnish Big Brother Award goes to intrusive loyalty card programme (07.09.2017)

Copyright letters facing headwinds – Market Court changed its line (only in Finnish, 12.06.2017)

Farewell to the blackmail letters? Market Court decision makes it more difficult to claim compensation from peer to peer users (only in Finnish, 15.06.2017)

Lawyers are sending blackmail letters to ask for compensation for downloading TV series and movies – “It’s useless to ask a lawyer about moral” (only in Finnish,19.01.2017)

(Contribution by Heini Järvinen, EDRi)