Decision of 5 February 2008 from Bailiff's Court of Frederiksberg (Copenhagen, Denmark)
Bailiff's Court of Frederiksberg (Copenhagen)
Howitzvej 32
2000 Frederiksberg
Phone (+45) 3814 5400
Fax (+45) 3524 8458
www.Frederiksberg.dk
Transcript of records of the court
On January 29, 2008 the Bailiff’s court held hearings in courtroom Y, Blegdamsvej.
On the bench: Duty judge Poul Bisgaard-Frantzen.
Case: FS 14324/2007
1. IFPI Denmark as agent for Aller International A/S et al.
2. Foreningen af danske Videogramdistributører [Association of Danish Video-distributors] as agent for Buena Vista A/S et al.
3. Gyldendalske Boghandel Nordisk Forlag A/S
4. JP/Politikens Hus A/S
v.
DMT2 A/S [FOOTNOTE 1]
Attorney-at-law Jakob Plesner Mathiasen represented claimants.
Attorney-at-law Morten Agervig Helles represented defendant.
The following documents were presented: Request for an injunction, statement of defiance, reply, exhibits 1-21 & A-B.
Claimants laid the following claims:
1. Defendant should be prohibited from contributing to others people through the website www.thepiratebay. org making access and copying sound fixation and film and literarily works over which the claimants have copyright.
2. Defendant should be ordered to take the necessary measures, which will prevent access for defendant’s customers to the website of thepriratebay.org and subsequent sub-pages and sub-domains.
Defendant made claim that an injunction should not be issued.
The case and evidence from exhibit was presented for the court.
Expert witness, Kristian Løkkegård, informed that he works as chief technology officer at DtecNet Software ApS in Denmark. The company develops software, sell licenses and trace amongst other illegal activities on the Internet. Presented with letter of 24 January 2008 (exhibit 18 page 1, section 1-6) from managing director (CEO) Erik Test-mann, Contest A/S, Denmark to Johan Schlüter Law Firm I/S, the witness declared him in agreement with the con-tent.
By use of a piece of software, for example Azureus (shown in exhibit 5) a user can open torrent files (bit.torrent.com) which is stored on www.thepiratebay. org. Data in a torrent file is on its face of no value for the user. Azureus support bit.torrent.com, which can be compared with a communication file. When Azereus or another application that support bit.torrent.com is installed, the user by a click on a link to www.thepiratebay.org download requested material from another user. The user is automatically transferred to the application, which fetches the file.
www.thepiratebay.org only consists of links to material that are offered by other users. When first the users have found each other, they can communicate and exchange material without the use of www.thepiratebay.org.
The parties pleaded the case.
The claimants have argued in accordance with the claims made in the briefs, amongst others:
that from the website thepiratebay.org is given public access to sound and film and literarily works over which the claimants have copyright,
that this accessibility imply a independent public presentation, see Article 2 section 3 subsection 3 of the Copyright Act,
that the claimants not have given permission to this publication,
that this publication is in violation with the claimants’ copyrights
that the users’ downloading of digital copies of sound and film and literarily works, offered through the website thepi-ratebay.org, constitute an illegal copying, pursuant to article 2 of the Copyright Act, see Articles 11 section 3, 66 sections 1 and 2, 67 section 1 and 2.
that defendant contributes to the illegal copying and access by transmitting the illegal accessible material,
that the exception in article 11a of the Copyright Act does not embrace this transmission,
since article 11a of the Copyright Act presuppose that copying is done on basis of a legal original, see article 11 section 3,
that pursuant to the remarks made to the E-commerce Act, does the rules on freedom from responsibility in this Act not embrace preliminary remedy [~ US: TRO (temperate restraining order)] including injunctions granted by a bailiff court, see decision from Østre Landsret [Court of Appeals for Eastern District] Docket no. B-1677-03 [FOOTNOTE 2] (exhibit 14), affirmed by Decision of the Supreme Court published in [Danish Case Reporter] UfR 2006.1474H, [FOOTNOTE 3]
thus article 14 of the E-commerce Act does not rule out that a ban can be made against defendant’s acts, which violate the claimants’ copyrights,
that there is proportionality between the injunction claimants ask for and the consideration to the defendant [US: balance of equities tips sharply in the moving party’s favor]
that the website www.thepiratebay.org is the necessary connecting link between the users that makes it possible to make accessibility and copying material between the users,
that the activities on the website are illegal,
since the claimants have not given permission to the publication and copying that happens through the website,
since the users’ downloading of files through the website is illegal copying in violation of article 2 section 1 of the Copyright Act,
since the users’ accessibility of files through the website is a publication in violation of article 2 section 1 of the Copyright Act,
since thepiratebay.org by its deep links perform an independent publication in violation of article 2 section 1 of the Copyrights Act, and contributes to the users’ illegal copying, also in violation of article 2 section 1 of the Copyright Act,
since the whole purpose of the “pirate” bay is to exchange piracy-copies,
that by blocking for the access to the website www.thepiratebay.org, the defendant’s customers will be hindered from making accessible and copying copyright protected material in contravention of the claimants’ rights,
that there is no distinction between blocking access to the website www.thepiracybay.org and blocking the access to the websites www.allofmp3.com [FOOTNOTE 4] (exhibit 15) and www.mp3sparks.com [FOOTNOTE 5] (exhibit 16),
that the transmission of copyright protected material is done through defendant’s net even if the data-transmission is done between the users or from a website of the users, see exhibit 18,
that transmission of copyright protected material though defendant’s net constitute a temporary copying in violation with claimants’ rights, see article 8(3) of European Parliament’s and Council’s Directive 2001/29/EF, [Danish] Supreme Court Decision published in UfR 2006.1474 H, Copenhagen Bailiff’s Court’s decision of 25 October [Translator - The following seems lost in the court’s transcript: “2006 in Docket no. F1-15124/2006 (exhibit 15) and Frederiksberg Bailiff’s Court’s decision”] of 15 August 2007 in Docket no. FS 7509/2007 (exhibit 16) and EU Commission’s Report of 30 November 2007 (exhibit 21), and
that an injunction is the relevant and effective measure to prevent those violations of the claimants’ rights through website www.thepiratebay.org from happening,
that pursuant to precedent [case law], including Bailiff’s Court of Copenhagen’s decision in a total similar case F1-15124/2006 (exhibit 15) and Supreme Court decision of 10 February 2006, published in UfR 2006.1474 H, there shall be issued an injunction in this case.
Claims pursuant to the Civil Procedure Code:
that the acts upon which an injunction is requested are clearly in violation with the claimants’ copyrights,
that the illegal activities upon which is sought hindered otherwise is expected to continue,
that the general law on penalty and damages do not give the claimants sufficient protection, and at this place should be noted, that the legislator at the time of tighten up the rules of injunctions by amendments to the Civil Procedure Code expressly in the comments has stated that the requirements for injunctions normally will be fulfilled in cases concerning violations of immaterial rights [copyrights], see remarks to article 642 of the bill.
The defendant has argued in accordance with the claims made its Answering brief, amongst others:
that the website www.thepiratebay.org does not contain files of any kind that can be downloaded,
that accessibility to the claimants’ to sound and film and literarily works is done through peers,
that it is not possible for defendant to shut off the access to those in the case involved peers,
that blocking the access to www.thepiratebay.org for defendant’s customers will have no influence of such customers’ ability to download those in the case involved files from those peers, where the protected files are stored,
that no accessibility to sound and film and literarily works take place from www.thepiratebay.org,
that those acts, upon an injunction is requested, do not violate any of the claimants’ rights,
that no wrongful activity is taking place at the website www.thepiratebay.org,
that there is done no copying and thus no temporary copying in defendant’s routers during the transmission of downloads of for example copyright protected material from peer to peer, including via/over the website www.thepiratebay.org,
that the claimants has not lifted its burden of proof that there is done unlawful conduct through defendant’s customers access to www.thepiratebay.org, much less on that website at all,
that defendant has shown that those acts described by the claimant are not unlawful, and thus the acts cannot be prohibited, wherefore no injunction can be issued against those acts,
that the requirement for issuing an injunction are limited by one by law fixed principle of proportionality, which in this case imply that there shall not be issued an injunction because of the substantial disproportion
between the interests of the claimants and the harm and nuisance, which an injunction will cause defendant.
In addition, the defendant has during the oral proceedings waived the right to claim security if the court decides to issue an injunction.
DECISION
The court finds it undisputed that the website www.thepiratebay.org works as index and search engine, which allows users of the website to get accessibility to files from each other.
On basis of the production of evidence and argumentation, the court holds that an overwhelming part of the material exchanged through the website by the users are protected by copyrights, which are administrated by the claimants, and that the claimants have not given permission to the materials publication and accessibility. In addition, it is substantiated that the use of the website – which according to the information website www.alexa.com rank number 23 of the most popular websites in Denmark – has a certain diffusion in Denmark.
The exchange of copyrighted protected files, which is taking place between users of the website – without the permission of the claimants – thus constitutes a violation of the sound and film and literarily works that the claimants administrate and owns the right to, see article 2 section 1 of the Copyright Act.
The court holds that the website www.thepiratebay.org works as a special constructed and necessary search engine for wrongful distribution of copyrighted protected works. Further, the court finds the function of the website makes copyrighted protected works accessible for the public in a manner that must be considered with that of public performance, see article 2 of the Copyright Act, even though www.thepiratebay.org not by itself has uploaded copyright protected material on the net. In this connection, the court finds it important that the website through its search function is programmed with direct links to copyright protected material hosted by the website’s users, see UfR 2001.1572 V. [FOOTNOTE 6]
It is undisputed that customers at telephone company DMT2 A/S have access to website www.thepiratebay.org and subsequent sub-pages and sub-domains.
Pursuant to article 2 section 2 of the Copyright Act any direct or indirect, temporary or permanent, fully or partly production in any way or any form is regarded as reproducing copies. All form of copying is embraced by article 2.
The telephone company’s provision of access to www.thepriratebay.org constitutes a transmission through the telephone company’s net of copyright protected works. The court finds that DMT2 A/S’s transmission of the works constitutes a temporary producing of copies of the type, which is embraced by article 11a of the Copyright Act. It is without any significance that the copying is only temporary, since the reproduction is not done legally, see UfR 2006.1474 H, Copenhagen Bailiff’s Court’s decision of 25 October 2006 in Docket no. F1-15124/2006 and Frederiksberg Bailiff’s Court’s decision” of 15 August 2007 in Docket no. FS 7509/2007.
Therefore, the court finds that DMT2 A/S by giving its customers access to www.thepiratebay.org contributes to violate de copyrights that is administrated by the claimants, see article 2 section 2, confer section 1 of the Copyright Act. The fact that www.thepiracy.org to a certain extent – even though to a small degree – offers access to legally file sharing between the websites users, cannot legitimize the wrongful acts.
Thus, the court finds DMT2 A/S are making acts that violets claimants’ rights, see article 642 section 1 subsection 1 of the Civil Procedure Code. In addition, the court finds the other requirements pursuant to article 642 of the Civil Procedure Code for issuing an injunction is fulfilled. Moreover, the court has not been presented with facts that imply an injunction will cause DMT2 A/S harm or drawbacks of a kind that would be in obvious disproportion to the interests of the claimants for an injunction, see article 643 section 2 of the Civil Procedure Code.
As it can be presumed that there exists no risk for DMT2 A/S getting liable to its customers or third persons by obeying the injunction, see UfR 2006.1474 H, and as DMT2 A/S has waived a claim of security if an injunction would be issued, the court accept the claimants’ petition of an issuance of an injunction without security.
ORDER
DMT2 A/S must not contribute to others’ publication and copying through the website www.thepiratebay. org of sound and film and literarily works over which the claimants have copyright.
DMT2 A/S shall take the necessarily measures to prevent access for DMT2 A/S’s customers to Internet website thepiratebay.org and subsequent sub-pages and sub-domains.
Case closed.
Court adjourned.
Poul Bisgaard-Frantzen
Duty judge
Footnotes
[1] Translator: In Denmark, the company is also called “Tele2”. From 12 July 2007, it is part of Telenor.
[2] Translator: Partly published in decision mentioned in next footnote.
[3] Translator: TDC Totalløsninger A/S v. IFPI Danmark as agent for Arcade Music Company et al., UfR 2006.1474 H (Supreme Court of Denmark, 10 February 2006 - Docket no. 49/2005) (Plaintiff was service provider for A, which had two servers with amongst others illegal copyrighted music. The Court held the plaintiff’s transmission was a temporary illegal copying. It was not disproportional that plaintiff would have to disconnect A’s servers. As A did not have static IP-addresses, the injunction should only cover subscribers, which at a specific given time had been issued certain given IP-addresses. The parties agreed that plaintiff was free from responsibility pursuant to article 14 of the Danish E-commerce Act).
[4] Translator: IFPI Denmark as agent for Aller International A/S et al. v. Tele2 A/S (Bailiff’s Court of Copenhagen, 25 October 2006 - Docket no. F1-15124/2006)(The court issued an injunction against ISP's contributing to and giving access to Russian www.allofmp3.com, which distributed illegal music). On 22 November 2006, Tele2 decided to accept the court order and permanently block allofmp3.com, Robert Vanglo, [URL=https://www.computerworld.dk/art/36684]Tele2 lukker permanent for Allofmp3.com[/URL], Computerworld.dk 22 November 2006.
[5] Translator: IFPI v. Tele2 (Bailiff’s Court of Frederiksberg, 15. August 2007 – Docket FS 7509/2007)(Similar decision concerning mp3sparks.com [which is like Allofmp3.com operated by Mediaservices, Inc, a company founded in 2000 in Moscow, Russia]), Mikkel Aabenhus Hemingsen, [URL=https://www.computerworld.dk/art/40824]Fogedretten beordrer Tele2 til at blokere for mp3-site[/URL], Computerworld.dk, 16 August 2007 and [URL=http://en.wikipedia.org/wiki/AllOfMP3]Wikipedia[/URL].
[6] Translator: KODA et al. v A, UfR 2001.1572 V (Courts of Appeals - Western Division, 20 April 2001 - Docket no. KB-afd. B-1943-99) (15 year old A made a website with direct links to Danish and foreign music, which either was stored on foreign serves or had been uploaded by himself. The court found he unlawful had made the direct links and he was ordered not to copy or contribute to copy illegal music on the net. Plaintiffs awarded damages of 100,000 DKK).
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