Swedish internet users are the biggest losers of the blocking judgment

Recently, the newly established Patent and Market Court of Appeal ruled that an internet service provider must use technical blocking measures to prevent its customers' access to sites that infringe copyright on the internet. The ruling - which is aimed at Bredbandsbolaget but has implications for all Swedish internet service providers and users - is precedent-setting and cannot be appealed. The court has decided this itself.

Representatives of the film and music companies that brought the case are jubilant and say that the judgment means that the legal situation is now clearer. "What we in the industry see is the exact opposite: the judgment leaves a very unclear situation for internet operators and internet users and makes the legal situation in this area more uncertain than ever. The biggest losers are the Swedish internet users who have to look forward to a less free and open internet.

The fact that the judgment runs the risk of being completely toothless, i.e. that its effect on the ever-shrinking problem of unauthorized distribution of films and other copyrighted material on the Internet will be marginal at best, is one thing and remarkable in itself. The real problem is much bigger, and goes far beyond the issue of copyright. Ultimately, it is about our view of the internet, and the role of the companies that provide internet access to their customers.

There are three main parts of the Patent and Market Court of Appeal's judgment that raise more questions than they answer:

1. What could be the consequences of the new interpretation of the word "contributing" adopted by the Court, contrary to Swedish law which states that internet service providers who only provide internet access to their customers cannot be said to contribute to any copyright infringements committed by their customers? Should ISPs assess which pages and content on the internet are legal or illegal, and whether a requirement to block certain content is thereby reasonable or not? If so, on what grounds?
2. What is to prevent the judgment from opening the way for representatives of interests other than copyright to make similar calls for internet blocking legislation?
3. To whom should internet users who want to challenge or have questions about the blocking of their surfing and access to a free internet turn? The Patent and Market Court? The movie studios? The internet service providers?

The judgment makes very little, if any, reference to the answers to these questions or to what consequences were actually considered before the ruling.

The internet is one of the most socially transformative innovations in history. The infrastructure itself is a key public interest. For a specialized court focused on, and with expertise in, intellectual property law, with the apparent aim of protecting a special interest, to make an irreversible judgment that overnight turns its rules upside down is remarkable to say the least.

The long-term effects are difficult to predict. But clearly, there is a very high risk that they will go far beyond the narrow area the court seems to have thought it was dealing with. Unfortunately, the ruling cannot be appealed - the Patent and Market Court of Appeal itself has decided that. Who will now take responsibility for that?