Swedish Supreme Court ruling: does a domain name constitute property?

In December 2017 a ruling from the Swedish Supreme Court held that the right to a domain name is a property right that can be subject to forfeiture under the Swedish Copyright Act. Before the ruling, there was a widespread view that only physical objects could be subject to forfeiture under Swedish Law. Patricia Otter from our Stockholm office explains the latest development stemming from The Pirate Bay litigation…


The Pirate Bay

Piracy remains a problem in Sweden – according to a report from The Internet Foundation in Sweden, 75% of Swedish 16-25 year olds use pirate streaming sites.

The trial concerned The Pirate Bay site – a target of the global entertainment industry – and the domain names thepiratebay.se and piratebay.se, the primary portal for The Pirate Bay access. The technical details of The Pirate Bay are somewhat complicated but the material on the site has been made accessible through “torrent files” (i.e. computer files that list network locations of trackers which help participants to find each other and share material). This means that the site, whilst not hosting the content itself, makes copyright works available to the public without authorization.

In 2010, a number of people responsible for The Pirate Bay were convicted for aiding and abetting copyright infringement. Despite this judgment the site was kept up and running. The site has also been subject to other rulings concerning different legal issues as reported previously on MediaWrites.

December 2017 Swedish Supreme Court Ruling

In this most recent ruling by the Swedish Supreme Court the prosecutor argued that the appellant’s (domain owner’s) right to the domains should be subject to forfeiture since they were being used as instruments of copyright infringement. The appellant claimed that a domain name did not constitute property and therefore could not be subject to forfeiture.

The Court found that:

  1. assets of any kind, including rights, shall be regarded as property as the property belonging to someone is more important than its economic value. This means that the domain name is property in this instance;
  2. instruments of crime shall be interpreted as any property which in any way, in whole or in part, have been used or have been intended to be used to commit criminal acts or offenses. This means that there is no need for the property to be of a certain nature for it to be an instrument of crime, neither is it required that the instrument as such is a prerequisite for the crime to occur; and
  3. there is no reason why a domain could not be an instrument of copyright infringement, as the concept “instrument of crime” neither is restricted to physical property nor that the instrument needs to be designed or suitable for use of crime. Overall, as a result of the its findings, the Court held that the decision from the Courts of Appeal stands and thus the rights to the Swedish The Pirate Bay domains were to be passed to the Swedish state.
  4. The Court noted that domains are unregulated under Swedish law and that regulations available are mainly of a private and international nature. Furthermore, the Court stated that a person registering a domain name gets an exclusive right to use such name and that domains can be subject to dispute resolution and claim for ownership. They are also transferable, subject to trade, and can be of significant economic value. According to a CJEU (Court of Justice of the European Union) case the Court refers to, the CJEU has established that the right to a domain is a right to property that shall be protected under article 1 of Protocol 1 to the ECHR (European Convention of Human Rights).

Will this put a stop to The Pirate Bay?

The case is important to rights holders in Sweden because not only does it confirm the possibility of forfeiture of domain names, but it also represents an additional route to tackling online copyright infringement.

However, as The New York Times once put it, stopping online piracy is like playing the world’s largest game of Whac-A-Mole. Hit one, countless others appear.

The Pirate Bay has historically shown that it remains defiant. In 2015 it rebranded the site’s logo from a classic pirate ship to one containing a monster with many heads, having also established various versions of the site with different domain extensions – perhaps sending a clear message to authorities that whilst they can shut down one domain, another one will simply pop up in its place. Perhaps it is indeed as hard to kill as a hydra.

It remains to be seen if the forfeiture of the domain names will have any effect on The Pirate Bay’s longevity. Despite history having taught us that file sharing sites are often one or two steps ahead of rights owners, it is clear that prosecutors and media companies are not yet ready to retreat.

Patricia is an associate in our Intellectual Property practice group, who specialises in copyright, media and entertainment law. Based at our Stockholm office, Patricia is also a member of the Media, Entertainment & Sports sector group where she provides legal services to national and international clients on a broad range of IP matters, including commercial, strategic and regulatory issues within this area. A graduate from Stockholm University (LL.M.) in 2013, Patricia's previous work experience includes working for another major law firm in Stockholm and as legal counsel for a production company in the entertainment industry. She is also a former editor-in-chief of the legal law review "Juridisk Publikation". Patricia speaks Swedish and English.

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