European case law on the infringing status of direct links to illegal copyrighted content seems to vary across member states. Last week, a Swedish court ruled that a website offering two direct links to live v.o.d. ice hockey games are directly infringing the rights holder's copyright. However, earlier this week a Dutch court ruled that a direct link to the download location of a Dutch movie forms no direct copyright infringement (but a tort instead).

Dispute

Plaintiff in the lawsuit before the Swedish Regional Court of Hudiksvall is C More Entertainment (production company of the hockey games). Defendant in the case is Linus Sandberg, holder of the website and the one who placed the links. C More Entertainment (CME) has an agreement with the Swedish Hockey League to broadcast and produce the Elite Series hockey matches. Canal+ offers CME’s ice hockey matches as part of its pay-per-view Web TV service.

Linus Sandberg found a way to get free and direct access to two of CME’s hockey games and published the links to the two games on his website. After clicking on the links, the live games were directly watchable.

CME finds that Sandberg’s two links are directly infringing its copyrights and are therefore unlawful acts, making Sandberg liable for the resulting damages. Sandberg defends himself by arguing that the broadcasts of the hockey games lack the necessary creativity and thus don’t enjoy any copyright protection. Also, both parties appear to have different ways of calculating any possible damages, not surprisingly with widely varying results.

Copyrighted work

Firstly, the Hudiksvall Court determines whether or not the hockey games are copyright protected works, taking into account the expert opinion of Swedish professor Jan Rosén.

He argues that, although a sport match in itself is not a 'performance', by adding comment, camera work, lighting and visual effects a sports game can be sufficiently creative to surpass the threshold for copyright protection. The court took into consideration that CME used different cameras and camera angles to capture the drama and character of the match in her recordings. Furthermore the TV producer put a personal signature on the game by making choices on how to edit the matches. Although the court already considers this sufficient ground to qualify the two hockey games as copyright works, it stressed that the personal comments given by the matches’ commentator also put particular weight into the creativity of the work.

Infringing link

Still, did Sundberg commit copyright infringement by placing two (direct) links to the copyrighted works on his website? In the opinion of the Court of Hudiksvall the answer to that question is affirmative. Firstly, the Court refers to the similarities with another Swedish case, where the High Court held that a direct link to an MP3 file infringes the copyright of the musical work (NJA 2000, p. 292). Secondly, the Court argues that Sweden as a EU member state has the authority to give a broader interpretation to the term "making available to the public" as defined in the EU InfoSoc Directive. Since the MP3 case, placing direct links to online copyright falls under the scope of the term 'till överföring allmänheten’ (‘communication to the public’) in the corresponding article in the Swedish Copyright Act and is therefore a directly infringing act. The court sees no reason to differ from the High Courts previous interpretation of the Swedish Copyright Act in the case between CME and Sundberg.

Compensation

In the calculation of damages the Court doesn’t follow the arguments of CME’s lawyers. The amount of damages shouldn’t be calculated on the basis of lost income for full broadcasting licenses of the individual matches. Instead the damages should be calculated by taking the amount of matches Sundberg ‘made available to the public’ and multiplying that by the number of users and the usual amount per match.

See for the original verdict here (PDF, Swedish)

Source: Dagens Nyheter (Swedish)