Two movie companies that applied for an information injunction against an ISP they claim has connections to The Pirate Bay have had their claim thrown out by a Swedish court. Obenetwork successfully argued it had no access to data relating to one of its customer’s customers, so could not comply with the order.
Svensk Filmindustri and Nordisk Film, supported by anti-piracy partner Rights Alliance, approached Cloudflare for information on where The Pirate Bay was hosted.
Cloudflare responded with an IP address which according to the movie companies belonged to Swedish ISP Obenetwork.
Demand for Obenetwork to Hand Over Information on The Pirate Bay
Acting on this information, the companies went to court in Sweden, demanding an information injunction compelling Obenetwork to hand over all information about their customer, in this case – presumably at least – The Pirate Bay.
The matter was so urgent, the movie companies argued, that Obenetwork shouldn’t be given the chance to be heard in the case, alleging it could decide to destroy evidence, hindering the inquiry.
The court decided that an injunction was appropriate but it soon became apparent that things weren’t going in the direction the movie companies might’ve hoped. Speaking with TorrentFreak earlier this month, Obenetwork insisted that the IP address in question wasn’t theirs and actually belonged to a customer, VPN provider OVPN.
IP Address Belongs to Another Company
“The IP specified in the court order is from OVPN’s own PA-space [Provider Aggregatable Address Space] they have directly from RIPE. However OVPN doesn’t have its own AS-number, their space is announced by different ISPs around the world where they have servers,” the company said.
OVPN confirmed to TF that the address is indeed theirs, although they would provide no further details on who may or may not have been using it early June when the injunction was issued. What was clear, however, is that Obenetwork intended to fight its corner, a battle that has now come to fruition.
Decision of the Stockhom District Court
In a decision handed down yesterday at the Stockholm District Court, the IP address in question is visible – 220.127.116.11 – with a note that Obenetwork disputed the injunction on the basis that the IP address isn’t theirs so the company is the wrong respondent.
Indeed, a WHOIS query on the IP address in question reveals quite clearly that the IP is registered to OVPN.
Obenetwork informed the Court that while OVPN had bought capacity from the ISP, it lacked any knowledge or information about OVPN’s customers, arguing that the requirement for data storage is the responsibility of the entity closest to the end-user, in this OVPN.
The movie companies persisted, however, arguing that Obenetwork’s operations are a prerequisite for OVPN’s operations and Obenetwork must therefore have the ability to obtain the necessary information from OVPN. Obenetwork countered that it does not form a “vital part of OVPN’s operation” and does not have the ability to log information about end customers, including OVPN.
In its judgment, the Court said that the Copyright Act allows entities to obtain information if a communication service has been used to breach copyright. However, there is a requirement that the target of such a request has access to the information that the applicant is seeking to obtain.
In the event that the target (in this case Obenetwork) disputes that it has access to the information, the applicant must provide sufficient evidence that its claim will be successful. The movie companies fell short in this respect.
“The defendants have not shown this in the present case,” the decision reads. “The application for information disclosure should therefore be rejected because the information referred to in the request for information disclosure cannot be obtained by Obenetwork.”
With that, the Court dismissed the application filed by Svensk Filmindustri and Nordisk Film and retracted the interim order. Obenetwork informs TorrentFreak that it is pleased with the outcome.
“I’m glad that the court shared our position we’ve had from the very beginning, that subscriber information is the responsibility of the company closest to the end customer,” says Tobias Windh, co-founder of Obenetwork.
“It is not reasonable nor possible for a capacity provider higher in the chain to have knowledge of their customers’ end-users, otherwise a lot of companies selling wholesale services like IP transit would have had to rethink their whole business model.”
What happens next is unclear. In theory at least, the movie companies could file a similar application against OVPN, which is also based in Sweden. However, OVPN’s David Wibergh previously informed us that OVPN’s entire structure is built to ensure that no logs can be stored, with servers locked in cabinets and operated without hard drives.
If that is indeed the case, OVPN will not be able to comply either.
Many thanks to TorrentFreak for the breaking news.