Swedish Courts Say Copyright Infringement Shouldn't Always Be Punished by Jail Time

By Tom Pritchard on at

Rights holders are notorious for coming down hard on people enabling the infringement of copyright, and until now they've always been considered on par with the theft of physical goods. To be punished by time in prison, basically, but Swedish courts have decided that this shouldn't necessarily be the case, and that presumed sentencing for such crimes shouldn't necessarily be imprisonment.

Bit of backstory here. This came about thanks to the arrest and subsequent sentencing of a 50-year old Swedish man (referred to only as BH) for running the private tracker Biosalongen (aka Swepirate). He was charged with sharing at least 125 films and TV programmes, was found guilty and sentenced to eight months in prison. BH has since appealed against that decision, filing a claim with Sweden's Supreme Court asking for his sentence to be dismissed for being too harsh. Prosecutor My Hedström also wanted the Supreme Court to hear the case, so they could clarify the sentencing for these types of offences in future.

Well the Supreme Court has made its decision, and it's not likely to make copyright holders happy. The court upheld an earlier ruling of probation, and clarified that copyright infringing offences shouldn't necessarily be punished with time in prison. A summary from International Law Office says.

“Whether a crime should be punished by imprisonment is generally determined based on its penal value. If the penal value is less than one year, imprisonment should be a last resort. However, certain crimes are considered of such a nature that the penalty should be a prison sentence based on general preventive grounds, even if the penal value is less than one year.”

In this case it was found that BH's crime only had a penal value of six months, and based on that alone there is no presumption for a prison sentence. The Supreme Court also ruled that legislation that indicates such crimes should be punished with a prison sentence, noting that copyright infringement is actually quite similar to trademark infringement. A similar case determined that trademark infringement should not have presumed jail sentencing, and thus due to their similarities copyright infringement should be treated as such. The entire ruling is available here, if you understand Swedish.

This is a big change from the past, especially with the case of sentencing three co-founders of The Pirate Bay. Peter Sunde, Fredrik Neij, and Carl Lundström were sentenced to prison terms of eight, ten and four months respectively with the Svea Court of Appeals ruling that such crimes should be punished by imprisonment and in this case did not grant the right to appeal.

Rights holders might be disappointed at the development, though it'll likely be a relief to many people since it feels like the decision is a much fairer way of looking at the crime. It doesn't discount the possibility that offenders will go to jail, but it does mean that it's by no means an absolute guarantee if they are found guilty. [TorrentFreak]

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