Last year, various individuals connected with the Pirate Bay reacted strongly to the refusal of the Swedish Supreme Court to hear their appeal in a copyright case against them. Peter Sunde exclaimed that the site, one of the most notorious and unapologetic facilitators of infringement in recent memory, “has been one of the most important movements in Sweden for freedom of speech” and those involved in running the site “have been mentioned as possible winners of the nobel peace prize.”
However, yesterday a unanimous chamber at the European Court of Human Rights held that the massive infringement the site enabled justified any interference with the site founders’ free expression rights. The Court, in fact, said that the founders’ appeal on free speech grounds was “manifestly ill-founded.”
Peter Sunde, of Finland, and Frederik Neij, of Sweden, were charged in 2008 with complicity to commit crimes in violation of Sweden’s Copyright Act for their role in operating the Pirate Bay. The District Court found both guilty in April 2009 and handed down a sentence that included prison time and fines. Both appealed the decision, and though the verdict was upheld, the appellate court reduced Neij’s sentence. This decision, in turn, was appealed to Sweden’s Supreme Court. The Court refused to hear the appeal in February 2012.
And so, Sunde and Neij appealed to the European Court of Human Rights, a supra-national court that has jurisdiction to hear cases where a violation of human rights, as defined by the European Convention on Human Rights, by a member nation are alleged. The Court issued its decision in Neij and Sunde Kolmisoppi v. Sweden (application no. 40397/12) yesterday.
The Pirate Bay founders claimed that their convictions interfered with their right to free expression. That right is enshrined in Article 10 of the European Convention on Human Rights, which states:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
At the outset, the Court did conclude that the Pirate Bay founders’ actions taken to run the site were an exercise of their right to free expression, and the subsequent conviction did interfere with that right. But that is only the beginning of the Court’s inquiry. It next turned to a three-pronged question: (1) was the interference prescribed by law, (2) was there a legitimate aim to the interference, and (3) was the interference a “necessity in a democratic society.” The first two parts of this question were easy to answer. The convictions were based on Sweden’s Copyright Act and Penal Code, and were in pursuit of the legitimate aim of protecting plaintiff’s copyright — i.e., protecting the rights of others and preventing crime.
The final prong, perhaps unsurprisingly, generated the most discussion. As the Court said, “The test of whether an interference was necessary in a democratic society cannot be applied in absolute terms. On the contrary, the Court must take into account various factors, such as the nature of the competing interests involved and the degree to which those interests require protection in the circumstances of the case. In the present case, the Court is called upon to weigh, on the one hand, the interest of the applicants to facilitate the sharing of the information in question and, on the other, the interest in protecting the rights of the copyright-holders.”
How the Court characterized the interests of copyright-holders is, in my opinion, the most striking part of the decision. The Court stressed “that intellectual property benefits from the protection afforded by Article 1 of Protocol No. 1″ to the European Convention on Human Rights. This article states:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
That is, under the European Court on Human Rights, intellectual property rights are treated as property rights. This wasn’t a new holding; the Court cited to a 2007 case that agreed that intellectual property “incontestably” enjoys the same protections as personal and real property under the Convention.1
The Court’s case law is consistent with the conception of copyright and free speech in the U.S. that I have previously suggested accounts for their unquestioned co-existence from the founding of the country and nearly two centuries afterward. Copyright was considered property. Remedies to protect property were generally not seen as infringing freedom of speech. Just as the First Amendment does not typically trump trespass law, it does not typically trump copyright law.2 This conception has, of course, been assailed in recent decades by the academy3 and certain civil society groups (and, lately, from a subset of libertarians) — all of which likely helped convinced the Pirate Bay founders that they had a case here.
Not only are intellectual property rights treated as property rights, but, as the Court reiterates, States have an affirmative duty to protect them. That means in certain cases, it is sometimes appropriate to have criminal enforcement in addition to civil enforcement. The Court concluded that this was one such case. It said the Swedish government had “weighty reasons for the restriction of the applicants’ freedom of expression [Emphasis added].”
This, along with the Court’s holding that “the prison sentence and award of damages cannot be regarded as disproportionate”, led to its ultimate conclusion that the interference the Pirate Bay founders’ conviction caused with their free expression rights was ”necessary in a democratic society.”
- Anheuser-Busch v. Portugal [GC], no. 73049/01, § 47, ECHR 2007‑I. [↩]
- For a modern take on this comparison between copyright, the First Amendment, and trespass, see Lillian BeVier, Copyright, Trespass and the First Amendment: An Institutional Perspective, 21 Soc. Phil. & Pol’y 104 (2004). [↩]
- For a lengthy yet nonexhaustive list, see this footnote from Copyright and Censorship. [↩]