On 5 September 2008 the Eastern division of the Danish High Court (Østre Landsret) issued a decision in an appellate case dealing with liability for illegal file sharing over a wireless access point.

The decision does not break any new ground in the sense that it follows an established procedural rules under Danish law regarding allocation of burden of proof in compensation claims. However, the decision is noteworthy as it states – what really ought to be self-evident – that in a legal environment that increasingly has been under pressure to accommodate the interests of holders of intellectual property rights as opposed to those of ordinary internet users:

copyright holders will have to prove like any other claimants in compensation claim suits that you actually committed a copyright violation and thus cannot – as was asserted by the copyright holders under the case – demand that the burden of proof is reversed to you so that it is you that have to prove that you did not commit the violation.

Here are the facts from the two similar cases that resulted in similar decisions from the Danish Appellate Court. The two defendants were both subscribers to Internet connections provided by a large Danish ISP. The defendants had not secured the routers with passwords or the like. People could therefore without permission access both the defendants’ computers and via these the Internet via the open WIFI access points.

In both cases the court considered it established through the evidence presented by the plaintiffs that via the two defendants’ internet connections unauthorised illegal copies of music files had in fact been made available for users of certain specific file sharing services. Even though that this is not clear from the court’s decision, the situation seemed to be that someone – according to the defendants, not themselves – had downloaded a file sharing client via the unsecured WIFI access point and installed it on the PC’s of the defendants and thereby made the illegal files found on the file sharing service available through the defendants’ WIFI access points with the PC’s serving as file sharing nodes.

The case was brought before the court by a number of Danish music rightsholders and their associations that claimed compensation for their alleged economic losses due to unauthorised making available of the music that had taken place via the defendants’ network connections.

The plaintiffs asserted that it was the defendants who were liable for the illegal file sharing that had taken place via the defendants’ internet connections, even though it was not established that the violations had in fact been committed by the defendants. The assertion was that the defendants consequently had to prove that they had not themselves undertaken the file sharing, if they were to avoid being liable for it. In other words, it was the plaintiff’s position that in this case a reverse burden of proof was to be applied when it was established – such as it was the case – that the internet connection had in fact been used for a copyright violation.

The Appellate Court found – as did the Court of First Instance – that a rule constituting a reversed burden of proof did not apply in the two cases. As in both cases it was indeed possible that many more users than the defendants had been using the defendants’ network connections and as the plaintiff had not shown that the defendants and nobody else had undertaken the observed file sharing, the court decided to acquit the two defendants.

The decision makes it clear that under Danish rules on copyright and civil procedure it is not sufficient for the plaintiff to establish that a specific copyright violation has taken place via an IP-address in order to make the owner of that IP-address liable for the violation. It is also necessary to establish that it is in fact the defendant who has committed the violation. In reality this is merely an application of the normal principle of the allocation of the burden of proof according to Danish law between plaintiff as the claimant and the defendant.

The decision makes clear that in the future, rightsowners who have suffered a violation will have difficulties in many cases making Internet users liable for file sharing activities as the IP-address used for the file sharing often will have many actual or potential users. These can be users of an internet connection within a household or unauthorised users who have locked-in or hacked their way into a wireless or wired network.

Another venue for the rightsholders – which was not to my knowledge pursued during the two cases – would be to claim that the defendants are liable due to what under American law would probably qualify as contributory negligence. The negligence on the part of the defendants would consist in not securing their WIFI access points. Whether such argument woyuld hold remains to be seen.

In a press release (Google translation from Danish into English) the plaintiffs have made clear that they will apply for a permission to have the case tried before the Danish Supreme Court.

Furthermore as spokepersons of the plaintiffs have mentioned in the press (Google translation from Danish into English) that if the decision is not granted review before the Supreme Court or if a decision in the Supreme Court confirms the Appellate Court’s decision, the different Danish rightowners’ associations that were part of the plaintiff’s consortium will probably ask the Parliament for a change of law.

That a plaintiff will have to prove that the defendant acted in a way that made that person liable – and not the other way around – is a fundamental procedural principle according to Danish law – and I guess also in most other legal systems. It is hard to see why narrow interests of rightsholders should justify any deviation from that principle.

The interests of the society as a whole in making it easier for rightsowners to pursue their claims in cases of file sharing seem negligible compared to society’s interests in maintaining firm and fair procedural rules concerning burden of proof.

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