Nordic Records Telenor - Norwegian Court of Appeals 9 Feb 2010

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Unofficial Translation of the Nordic Records Norway et. al. v. Telenor ASA, Borgating Lagmannsretts, 9 Feb 2010

the so-called Norwegian thepiratebay.org case

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This unofficial translation is available from www.hssph.net/misc.html#Cases

Court of Appeals

DECISION9 February 2010

Summary:1Appeal in Norwegian Pirate Bay case. Asker andBrum District Court refused to impose on Telenor toblock its subscribers' access to Swedish file-sharingservice Pirate Bay. The order has now been confirmedby Borgating Lagmannsretts order of 9 February 2010.The Appeal court like the lower court held that Telenoris not legally be said to contribute to users' copyrightinfringing acts on Pirate Bay. The Appeal courtpremises are considerably more nuanced than thelower courts. The Appeal court finds it of particular

importance that Telenor's contributions to the users'illegal acts merely is technical and neutral andtherefore too distant to legally be characterized asillegal and punishable. The Court also refers to thegeneral illegality-reservation. The court dismissed -

particularly in regard to mere-conduit-rule in e-commerce Directive - that the fact that Telenor hadbeen made aware of its network was used forcopyright infringing acts, should make Telenorcontribution-responsible.

*12 Borgarting Court of Appeal3

DECISION4

Delivered: 09.02.2010

Case no.: 10-006542ASK-BORG/04

1 From www.it-retsforum.dk/index.php?id=39&tx_ttnews[tt_news]=177&cHash=287e06a291] (visited July 2010).

2 Number after a bold * state the page of the original decision.3 In Norwegian: Borgarting Lagmannsrett.4 Original in Norwegian at www.it-

retsforum.dk/uploads/media/Telenor_PB_dom_Borgarting_20

10.pdf (visited July 2010).

Judges:Court of appeal judge

5Lagdommer Jan-Fredrik

WilhelmsenCourt of appeal judge Dag A. MinsaasCourt of appeal judge Sveinung Koslung

Appellant Nordic Records Norway AS, Attorney RuneLjostadAppellant Univeral Music AS, Attorney Rune LjostadAppellant Universal City Studios LLLP, Attorney RuneLjostadAppellant Bonnier Amigo Music Norway AS, AttorneyRune LjostadAppellant Voices Music & Entertainment AS, Attorney

Rune LjostadAppellant Sandrew Metronome Norge AS, AttorneyRune LjostadAppellant Playground Music Scandinavia Norge -Norsk Avdeling Av Utenlandsk Foretak, AttorneyRunLjostadAppellant Twentieth Century Fox Film Corporation,Attorney Rune LjostadAppellant TONO, Attorney Rune LjostadAppellant Friland Produksjon AS, Attorney RuneLjostadAppellant Warner Music Norway AS, Attorney RuneLjostad *2

Appellant Steelworks Stein Groven, Attorney RuneLjostadAppellant Warner Bros. Entertainment, Inc, AttorneyRune LjostadAppellant Daworks Music Publishing, Attorney RuneLjostadAppellant Sf Norge AS, Attorney Rune Ljostad

5 In Norwegian: Lagdommer.
http://www.hssph.net/misc.html#Caseshttp://www.hssph.net/misc.html#Caseshttp://www.it-retsforum.dk/index.php?id=39&tx_ttnews%5Btt_news%5D=177&cHash=287e06a291http://www.it-retsforum.dk/index.php?id=39&tx_ttnews%5Btt_news%5D=177&cHash=287e06a291http://www.it-retsforum.dk/index.php?id=39&tx_ttnews%5Btt_news%5D=177&cHash=287e06a291http://www.it-retsforum.dk/uploads/media/Telenor_PB_dom_Borgarting_2010.pdfhttp://www.it-retsforum.dk/uploads/media/Telenor_PB_dom_Borgarting_2010.pdfhttp://www.it-retsforum.dk/uploads/media/Telenor_PB_dom_Borgarting_2010.pdfhttp://www.it-retsforum.dk/uploads/media/Telenor_PB_dom_Borgarting_2010.pdfhttp://www.it-retsforum.dk/uploads/media/Telenor_PB_dom_Borgarting_2010.pdfhttp://www.it-retsforum.dk/uploads/media/Telenor_PB_dom_Borgarting_2010.pdfhttp://www.it-retsforum.dk/index.php?id=39&tx_ttnews%5Btt_news%5D=177&cHash=287e06a291http://www.it-retsforum.dk/index.php?id=39&tx_ttnews%5Btt_news%5D=177&cHash=287e06a291http://www.it-retsforum.dk/index.php?id=39&tx_ttnews%5Btt_news%5D=177&cHash=287e06a291http://www.hssph.net/misc.html#Cases


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Appellant Nordisk Film Distribusjon AS, Attorney RuneLjostadAppellant Dj Beat Records Scandinavia AS, AttorneyRune LjostadAppellant Sony Music Norway AS, Attorney RuneLjostadAppellant Filmkameratene AS, Attorney Rune LjostadAppellant EMI Recorded Music Norway AS, AttorneyRune LjostadAppellant The Music Business Organisation (mbo) AS,Attorney Rune LjostadAppellant Sony Pictures Entertainment, Inc, AttorneyRune LjostadAppellant Paramount Picture Corporation, AttorneyRune Ljostad

Appellee Telenor ASA, Attorney John Steffen

Gulbrandsen

*3 The case concerns the request for a temporarycourt order demanding that Telenor shall be prohibitedfrom contributing to making available to the public andcopies via the website The Pirate Bay for copyright-protected works and works.

The request was withdrawn 16 June 2009 at Askerand Brum District Court of 23 companies andassociations, including 12 Norwegian record

companies, TONO, five U.S. movie studios, threeNorwegian film distributors and two Norwegian filmproducers (the "licensees"). In all, five tradeassociations have declared a party assistance insupport of the petition, see Disputes Act 15-7. Thepurpose of the petition are from licensees side toprevent infringement of copyrighted works over theInternet. Rettighethaverne have copyrights and otherrelated rights in all material respects, the music andfilm on the Norwegian market.

The Pirate Bay was established as a web service inautumn 2003. The service consists of a web page that

can be reached under several addresses on theInternet. The website adds conditions for sharingbetween users of The Pirate Bay. File sharing doesnot take place physically through The Pirate Bay, butby the creation of direct contact between end usersexchange files. The Pirate Bay is based on the so-called Bit-Torrent technology. The technology worksso that the user by downloading from The Pirate Bayand open a so-called torrent file, automaticallyconnects to other users that provides all or part of the

file (usually film, music or software) torrent file refers tothe technology provider in this way contact with otherswho can provide the relevant requested file, andholder at any time track of which users provide thefiles.

In Norway, Telenor is the largest provider of Internetservices and account for approximately 50% of themarket. In virtue of being a so-called Internet ServiceProvider, Telenor provides a service - in the firstinstance a purely physical infrastructure - which makesit possible for Telenor's Internet customers to visit thepages of The Pirate Bay. Telenor offers in otherwords, the necessary infrastructure to transmit datatraffic, with the consequence that illegal file sharingcan take place and to some extent takes place amongTelenor customers who visit The Pirate Bay. Telenormakes further actions in terms of operation,

maintenance and support as necessary to provide thisservice to their end users. Telenor is not even the ISPto The Pirate Bay and is in no contractual relationshipwith the companies or people behind the website.

It is undisputed in the case that users of The PirateBay, in many cases using the website of illegal filesharing that may involve a violation of licensees andthat this also applies to Telenor's customers, althoughthere is disagreement between the parties regardingthe scope of the illegal materials available via ThePirate Bay and the share of Telenor's customers areinvolved in the illegal file sharing. The court assumed

that as much as 90% of *4 the material that can beoffered through The Pirate Bay is illegal fildelt, whileTelenor is based on information from The Pirate Bayhas entered an illegal ratio of about 20%. The courthas further assumed that about 140,000 persons inNorway visit The Pirate Bay every day, while Telenorin its response to the court of appeal - on the basis ofinformation from The Pirate Bay - estimated 12,000users. The appellate court found no need to go tothese evidence questions in the following, but assumethat the illegal file sharing via The Pirate Bay takesplace in the not insignificant extent, among Telenorcustomers, and that this represents a serious problem

for licensees. The Pirate Bay is undoubtedly one of thesites that are currently the greatest extent facilitatesillegal file sharing.

Asker and Brum District Court rendered 6 November2009 ruling in the case of such a conclusion:

1. The request is rejected.2. Case Costs awarded not.


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The court based its result not to take the petition tofollow, that Telenor's participation in the form of askingits network available to The Pirate Bay, withoutsupervision or control of those sites, did not representa law unconstitutional participation. The conclusion atthis point is in the ruling expressed as follows:

The court concluded that a contribution fromTelenor, whether active or passive, can not beregarded as unlawful. As participation is notconsidered unlawful, it is not necessary for thecourt to decide whether there is guilt andcausality. It is not necessary to decidewhether there is a security reason. Therequest has not brought forward, andaccordingly to reject.

The licensees appealed the ruling to the Borgarting

Court of Appeal 9 December 2009. The appeal dealwith courts use the law and evaluation of the facts.

Telenor filed response to the appeal on 8 January2009. In response, it is stated that Telenor Norway AShas taken over the party post to Telenor TelecomSolutions AS through this company's merger withTelenor Mobil AS, Telenor Privat AS and TelenorBusiness AS new Telenor Norway AS with the sameorganization as the former Telenor Telecom SolutionsAS. The Court adds that party relationship to reasonand Telenor Norway AS is in this award named"Telenor.

The Appellants, The rightholders, has essentiallystated the following:

Main arguments

The conditions to determine interim measure are metand the court's ruling is incorrect. *5

Copyright Article 8.3 are fundamental for ourunderstanding of the issues the case raises and theright must be based on this decision of the case.

The Appellants have a claim on other than "money",see Disputes Act 32-1, third paragraph. The claim isbased on the Copyright Act 2, 42 and 45 for men'sexclusive copyrights and performing artists andproducers related rights, responsibilities andparticipation in the Copyright Act 54 third paragraph,cf 55 first paragraph. Telenor to contribute physicallyand passively to the illegal activities carried out bythose responsible for The Pirate Bay, as well as theillegal actions of Telenor end users commit when they

upload or download (respectively makes available tothe public and to copy) movie and music works theAppellants have rights to.Participation is unlawful.

There is hedging because of both options in DisputesAct 34-1. In relation to option a, there will not beanticipated consummation of the main claim byproviding pursuance of a requirement for a temporarycourt order.

Copyright Law Directive as the basis for theassessment of court order basis

The licensees shall follow the copyright Directive(2001/29/EF) Article 8.3, have the opportunity todemand measures against intermediaries: "MemberStates Shall ensure That rightholders are in a position

to apply for an injunction against intermediariesWhose services are exceptional city a third party toinfringe a copyright or related right. " This provision isnot considered by the court.

The necessary changes to implement the CopyrightDirective within the Norwegian law was made inconnection with the amendments of the Copyright Actwhich came into force on 1 July 2005. In the case ofthis implementation, "said Culture and Church Affairsin a letter dated 24 September 2007 that the CopyrightDirective Article 8.3 did not need a specialimplementation to be binding internally, as the existing

provisions relating to participation in intellectualproperty law and the injunction in a dispute the law(then the Enforcement Act) was already sufficient toconclude that the Norwegian law was in conformitywith the directive. This statement from the ministry andNorway's obligations under the EEA Agreement tobring the Norwegian legislation in accordance with theCopyright Directive is of central importance to the lawapplying in the case. The result the court has reachedinconsistent with Norway's obligations under the EEAAgreement and the contents of the letter from theMinistry of Culture and Church Affairs 24 September2007, and that no court in its decision neither have

commented on the relationship of copyright directiveor the Ministry's letter.

The court said in the second paragraph on page 9 inthe ruling that there is "no doubt" that plaintiffs have aneed to stop violations and that it is "necessary to finda solution to meet this need." The court said furtherthat "the court can not see that this will make *6Telenor liable, when the other account speaks sostrongly against." This reasoning shows that the court


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has misunderstood the matter. It is not proposedrequirement that Telenor will be punishment or liability.It established the doctrine of complicity liability mustbe interpreted and applied in a manner that isconsistent with Norway's obligations under theCopyright Directive, EEA, see also EEA Act 2 andpresumsjons-principle.

In the legal assessment of the conditions for interimmeasure, it is essential to realize the following point:This is not a case about responsibility for the serviceprovider (Internet provider), whether criminal or liabilitylaw. The reason why it mainly criminal law doctrine ofparticipation have received so much attention in thismatter, the way Norwegian legislator has chosen tofulfill the obligations of the directive on copyright.When participation doctrine to be applied to therelationship in this case, it essential that Article 8.3 of

the Copyright Directive provides a general andunconditional access for licensees to demandmeasures against intermediaries to prevent third partyinfringement of copyright or related rights, withoutregard to the provisions on the responsibility offreedom in commerce law (which explicitly excludesdeviation from its scope).

Article 8.3 contains no right against reservation, andmakes no demands for the sake of the man (internetprovider) page. It is in accordance with the directiveenough that it is found that the man's service is usedby a third party to infringe a copyright or related rights,

eg. in that the illegal material transmitted in thenetwork to the man. Other terms of blocking is notplaced. This is of importance for the application ofcomplicity liability in this matter, which is limited to aclaim that the Internet provider (Telenor) blocking endusers' access to The Pirate Bay to prevent violationsfrom occur through Telenor's network and nothingelse.

For the condition that the licensees should have a"claim" against Telenor

The Appellants 'claims "against Telenor is that Telenorcontributes to The Pirate Bay and Telenor's end users'illegal actions.

Copyright Act 2, 42 and 45 give the Appellantsprotection for the right to copies (downloads) andaccessibility to the public (upload) of titles (music andfilm work) that is violated by illegal file sharing throughTelenor's network. Copyright Act 54 third paragraphestablishes a complicity liability for infringement of the

copyright holders rights. Through 55 is complicityliability also applies to liability.

The court's ruling is correct when it is on page 8, thirdparagraph concludes - without doubt - that "Telenor'scurrent actions in itself implies a physical complicity inviolations. It appears that the network is a necessaryphysical condition for *7 rights violations takeplace." The verdict is not correct when it assumes thatTelenor's participation is not unlawful.

It is obvious that the responsibility of freedom of therules of commerce law is not an obstacle to providepursuant to a decision on interim measure. On thecontrary, speaks of these rules that Telenor may berequired to bring the illegal file sharing throughTelenor's network to an end or prevent it.

It appears from ecommerce Act 15 that it is thegeneral rules for penalties and damages applicable,unless otherwise provided in ecommerce law.Electronic Commerce Act exempts only from criminalliability and damages, see 16 ecommerce lawgoverning the type of transmission services, Telenordelivers. Back Basic law is therefore still relevant tothe legal for an injunction to block the Telecom's endusers' access to The Pirate Bay.

Electronic Commerce Act 20 expressly excludesorders from a court or administrative agency to bringan infringement to an end or prevent it, from the area

of responsible freedom. Preparatory works for theElectronic Commerce Act 20 states explicitly that"the right of injunction is not affected by theimplementation of articles 12-14, cf. No. 4 (2003-2004)Page 34

There is no conflict between the clarification not in 20 that a service provider independent of any liabilityof freedom may be required to bring an infringement toan end or prevent it, and clarifying any of 19 cf. 16 to 18 of the service provider does not have ageneral obligation to control, monitor or investigate theconditions to achieve such potential liability freedom.

An interpretation of 19 that directly or indirectlyprevented a court from requiring that the serviceprovider brought an infringement to an end, orhindered, it will however, be directly contrary to thetwo-track system - where the distinction betweencriminal and civil liability for violations on the one page( 16 to 18 cf. 19) and on the other hand, theinjunction to bring the infringement to an end orprevent them ( 20) - as commerce law stipulates.


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It is in this case anyway not about a general order tocontrol, monitor or investigate, but to respond tospecific, already documented, conditions and preventsuch from happening again by blocking certainInternet addresses or use other effective methods.Further reference to the Proposition. No. 4 (2003-2004) Page 32 left-hand column, where it isdetermined that the service provider is not exemptfrom such inspection duty if he receives well-documented information. The Appellants leave toTelenor to decide what effective method to be used.

Taking commerce law as evidence that Internetproviders should not do anything when it comes toviolations that occur in their network, is therefore notcorrect. It appears directly by paragraphs 40 andpreamble to the commerce directive (as ecommercelaw is an implementation of) that: "this Directive should

constitute the appropriate basis for the development ofrapid and reliable procedures for removing anddisabling access to illegal information; suchmechanisms could *8 be developed on the basis ofvoluntary agreements between all parties concernedand should be encouraged by Member States; it is inthe interest of all parties involved in the provision ofinformation society services to adopt and implementsuch procedures. While Telenor has rejected anyattempt at a voluntary arrangement with licensees toprevent access to copyrighted material, partly withreference to "commerce law system", says thecommerce directive that encouraged such voluntary

arrangements between the parties involved. Whateverdoes not commerce law no barrier to judicialcompetence in respect of an interim measure.

Freedom of speech and freedom of information is notan obstacle to take to pursue a petition for injunction inthis matter. On the contrary, an order to the Internetprovider, in this case, Telenor, to bring violations ofcopyright and related rights terminated or preventthem, promoting also the freedom of speech andfreedom of information.

The court seems to have taken direct position on the

importance of freedom of expression has in this case,when the case was settled on a different basis. Whatcourt's statement that "the infringing actions of endusers [is] a statement on a website" which will berestricted by a blockage is not correct, and seems tobe cited for a particular legal requirements (unless thecourt concludes on this issue). The offensive actionsfrom The Pirate Bay and end users are illegaldisclosure, and copies of copyrighted film and musicalwork and contribution to this. Film and music works

are available legally through other channels, and it cannot be true that freedom of expression and informationfreedom can be cited for those who violate theprotected rights to provide themselves and others freeaccess to movies and music that is available in trade.

The activity that is conducted through The Pirate Bayis not the freedom of expression and freedom ofinformation core area. The main purpose of The PirateBay is facilitating illegal file sharing. This hassignificance for the balance to be made in accordancewith the Constitution 100, ECHR, Article 10 Refer tothe Rt. 2007 p. 404 (Focal Point-case) where it isemphasized that the case came just journalisticfreedom of speech utterances in the core area when itwas granted a temporary court order to prevent a TVprogram aired. According to the Constitution 100 toa possible intervention weighed against freedom of

speech grounds in the quest for the truth, democracyand individual free opinion. According to the ECHR,Article 10 paragraph 2 it will also open for interventionby a weighing of interests, see the "protect the rightsof others ...." The trade-off to be made under theseprovisions, it is a weighty factor that the material inquestion to block access to copyright-protectedmaterial is made available to the public and copies aremade without the author's consent.

The Constitution prohibition against "pre-censure" isnot to interfere with the interim measure. It appearsfrom NOU 1999:27 paragraph 7.3.5 that: "There has

been no tradition in Norway to treat temporarymeasures as censorship and it must be assumed thatthe scheme is not *9 in conflict with [then valid] Grl. 100, 1 sentence ... The objective of freedom ofspeech is often cited by the defendant in cases ofinjunction, but there is no precedence from theSupreme Court that courts should be more reluctantdeviation from utterances than otherwise."

It is pointed out further on the differences betweenpre-censorship and the existing injunctions: An interimmeasure would be specific and not general, it will beimposed by a court, not administrative, and there will

be two private parties that are against each other. Itmay in this connection is pointed out that Telenor hasnot made any fundamental objections to childpornography filter that is used by Telenor and otherInternet providers, although this is to block contentwithout a court is involved. It is solely KRIPOS, withoutlegal trial, which decides which web addresses to beblocked under this scheme.


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In this case we are talking about blocking after a courthas undertaken a review of the petition for injunctionafter full contradiction and straight evidence. Whatcourt's statement that it is unnatural that privatecompanies will make an assessment of blocking (theruling page 8, last paragraph), therefore, as withoutrelevance to the facts, as there are courts to considerthis question.

By NOU 1999:27 point 7.4.2.2 shows that even afterthe amendment of the Constitution 100 should bepossible with the existing injunctions to utterances. Itstated that "it should be clarified that the existinginjunctions can be used only when it is probable thatthe disclosure is not satisfactory can be repaired withfinancial compensation and / or punishment." Thechange in the Constitution 100 does not involve anabsolute prohibition on the existing injunctions against

speech, even where utterances as opposed to what isthe case here would be in the core area of freedom ofspeech, appears on the St.mld. No. 26 (2003-2004)Section 5.6.2: "The wording of the constitutionFreedom of speech Commission's proposal poses aseemingly absolute prohibition on the use of existinginjunctions against speech before they are published.The premise, however, show that the proposal is notintended that way, but a tightening of the current legalstate".

It is difficult or impossible to prosecute the individualend users, partly because Telenor does not forward or

make end users aware of inquiries from licensees toend users with a requirement that the illegal activityceases. These factors mean that a court order againstInternet provider in reality licensees only chance tostop violations of their rights that takes place in amassive scale. This is also the legislative rationale forcopyright directive article 8.3 which states that Internetproviders in many cases, are best placed to preventsuch violations, see section 59 of the preamble.According to the Copyright Directive Article 8.3 shouldlicensees be allowed to claim a court order regardlessof whether the activity is internet provider liabilitycovered or not.

*10 Balance the interests of free speech is, in otherwords, already made by the legislator (the Europeanas well as the Norwegian by the EEA Joint Committeehas decided to make the copyright directive, a part ofthe EEA Agreement and by the Ministry confirmed theharmony of the copyright directive Article 8.3 andinternal, Norwegian law) when it is given the right toclaim a court order to block access to copyrightedmaterial. None of the freedom of speech arguments

as defined in the Constitution 100, ECHR Art. 1910will be an obstacle to an order to block traffic to andfrom The Pirate Bay. Consideration for the quest forthe truth is not threatened, because it primarily formsof expression (a specific movie or musical work) andnot their ideological content that is shared by ThePirate Bay and that will be affected by the blockage.The objective of democracy and individual free opinionis not threatened because the sparse legal materialsavailable on The Pirate Bay, are also availableelsewhere.

Telenor already performs the blocking of childpornography through the so-called child porn filter.Neither Telenor and Norwegian authorities have raisedno objections to this filter (Parliament also spokepositively about the Filter settings. O. No. 66 (2004-2005) page 4 left column), despite the fact that the

assessment of the content that is illegal undertaken byKRIPOS, while in this case for review by a court aftera contradictories process with immediate evidence.

In particular, the participation and legal disputethat assessment the subject of the injunction

Accomplice liability, see Copyright Act 54, forms thebasis for a "claim" that provides the basis for aninterim measure. Although it is a criminal complicityconcept that forms the basis of the Copyright Act 54,applies to this case an interim measure. In other

words, no talk of a demand for punishment orcompensation.

Copyright Act prohibits complicity in violations ofcopyrights and related rights, the Copyright Act 54,third paragraph, see 55, first paragraph, 2, 42 and45 Although there is talk of a criminal provision, it isclear that suitable proof of claims with respect to civilmatters apply, see Rt. 2005 p. 41 (Napster) Section 59There is thus a requirement for general probability thatthere is a requirement and a safety reason.

Participation Addendum the Copyright Act 54 came

after an amendment in 1988. The reason for theamendment was the technical developments that tookplace in the 80's with regard to the technicalpossibilities for extensive copying, cf. No. 34 (1987-1988) Page 41: "The Ministry agrees with thecommittee that the recent technical developmentshave led to a need to sharpen and expansion ofsanctions policy. With the recent technical advanceshave been possible for anyone with a relativelymodest investment to mass produce items, especially


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audio and video tapes. This has meant that in recentyears both internationally and nationally areexperiencing a real crime - the so-called piracy. Therehas been considerable extent of problems with illegalvinyl records and cassette tapes, and the problemshave further *11 increased in connection with thegrowing market for sale and rental of video programs.Both for the sake of rightholders and general culturaland social interests, it is important to intervene againstthe increasing piracy." In the bill page 42 it is statedthat "the introduction of a common responsibility forcontributing to the infringement of copyrights andmore" is among the measures proposed by thecommittee, which later was adopted.

The technical development described in the bill hassince continued in ever-increasing pace, and thelegislative justification for complicity liability strikes with

full force in this case. The Pirate Bay is a site thatprovide contact between users who want to downloadcopyrighted material, and those who provide suchmaterial through The Pirate Bay. The Pirate Bayallows these users to establish contact and make up-and downloads of content. The transmission of thecopyrighted material on peer-to-peer, ie directly fromuser to user.

The Supreme Court ruled in Napster.no case, Rt. 2005p. 41 that posting links on a website that simplified theprocess of identifying copyrighted material that wasposted without the copyright holders consent, was

regarded as liability participation under the CopyrightAct 55, cf 54 third paragraph. Refer to theJudgement paragraphs 63 and 65-68, see Judgmentparagraphs 2-4 that describes the technical process. Itis precisely such a function The Pirate Bay has, seepage 2 of the fourth paragraph of the things the court'sruling. The service allows users to make available andto identify such illegal material made available. It isirrelevant whether The Pirate Bay is technicallyinvolved in the actual data transfer happens betweenusers, see Section 2-4 in Napster.no ruling. In additionto this "contact-building" function similar Napster.no,which alone is sufficient for the Pirate Bay's activities

are criminal in Norway, involves the fact that ThePirate Bay also operates a so-called tracker that ThePirate Bay compared to the main action is still closerthan was the case in Napster.no-case.

The Pirate Bay's activities are thereforeunquestionably criminal in Norway according toNapster.no-judgment. It appears from Napster.no-

judgment paragraph 66 that it is irrelevant whetherThe Pirate Bay's activities are criminal in Sweden

(where those responsible behind The Pirate Bayresident), so long as it is punishable in Norway. In thesame way as in Napster.no case, see paragraph 67, itmust be assumed that The Pirate Bay's main purposeis to give other access to illegal about such music andfilm, as did the district court without further assume(the ruling page 8 , third paragraph).

The conditions for viewing the Telenor as a contributeto The Pirate Bay and / or their end users' illegalactions is that there must be a causal relationshipbetween participation action and the main action, andthat the contribution action after an overall assessmentis considered unlawful. In addition, the faultrequirement to be met.

*12 It is not required that the contribution action isthe sole cause of the main action, see Rt. 2005, p. 41

(Napster.no) Section 63, which states that it issufficient that the participation action enhances theeffects of uploaders (the main men's) actions. It is onlya contributory causes that are required, cf Andens,General Criminal Law, page 326 Any opportunity forusers to bypass a blockage or use other Internetproviders are therefore not relevant for theassessment of Telenor's participation responsibility.

It requires neither the existence of an identifiable mainculprit. This follows from the principle that eachcontributes judged by their own conditions, cfAndens, General Criminal Law, page 338, and

Napster.no-decision section 66

Furthermore, there is also no requirement that it is adeliberate combination of principal and contribute. Thisappears from Andens, General Criminal Law, page327 and Section 64 Napster.no decision It is thereforeirrelevant whether the main man (The Pirate Bay orTelenor end users) are aware of the complicity's(Telenor) cooperation action.

Final nor is there any requirement that participation inthe act itself is illegal. This turns expressly inNapster.no ruling section 63, and any such claim

follows as mentioned neither by copyright directivearticle 8.3 in respect of a claim for court order toprevent or block access to copyrighted material.

Firstly, it is claimed that Telenor contribute activelyphysically to The Pirate Bay and their end users' illegalactions. At this point, the court's ruling things correctly,as it assumes that (page 8, third paragraph) "Telenor'scurrent actions in itself implies a physical complicity inviolations. It appears that the network is a necessary


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physical condition for rights violations take place. " It isnot disputed that the illegal activity taking place inTelenor's network. There are several decisions basedon the assumption that to make the infrastructureavailable to illegal file sharing has been regarded ascomplicity, cf TOSLO-2005-106005 (VeritasBB)TJARE, 2007-6676 (Stavanger Dragon Hub), TOSLO-2003 -19,164 (Drink or Die) and RG-2005-1627 (DirectConnect). When the Internet provider to theinstrumental file sharing network is considered toparticipate in intellectual property law sense, it's evenmore reason to consider the Internet provider to end-users to participate in this sense.

Secondly, it is claimed that Telenor contributepassively by failing to intervene in the rights violationsin spite of the positive knowledge of this, and despitethe fact that such intervention would be technically

easy to implement. The court took no position on thisquestion. The condition to establish passive complicityin principle for physical participation, then it must beproven a causal connection between the omission andthe main action, cf Husab, penal-responsiblityperiphery, page 175 and 460-462. There is norequirement that the alternative action - to blockTelecom's end users' access to The Pirate Bay - willbe fully effective, it is sufficient that the main actioncompromised physically or mentally. Telenor hasfailed both to physically prevent their end users'access to The Pirate Bay and mental *13 counteractthis, transmit or otherwise make their end-users aware

of licensees requests that the illegal file sharing takesplace from end users internet connection. Case lawhas in many cases assumed that it is regarded ascomplicity to passively let the action take place, cf Rt.1999 p. 996 and Rt 1995 p. 820.

What court's decision is based on Telenor'sinvolvement is not unlawful. This is wrong use of thelaw. The court concludes that Telenor's participation isnot illegal because to provide pursuant to a court orderwill lead to "a difficult manageable situation inpractice." The court notes that the content of ThePirate Bay can be changed, and it is pointed out that

Telenor and other Internet providers should not have aresponsibility to make an assessment as to whether agiven site or service will be stopped or not.

From licensees side maintains that the eventuality thatThe Pirate Bay - who despite repeated front lines tochange this, for six years has had the primary purposeof facilitating illegal file sharing - can be changed, asthe court holds that justification to conclude thatparticipation is not unlawful, have already been taken

into account in a dispute statutory provision that theRespondent may petition for court order revoked orrestricted if there are changes in circumstances, seeDisputes Act 34-5 first paragraph. The fact thatconditions may change is also not particularly forcases like this and lead by the Appellants sight not avery difficult situation manageable in practice that theinjunction is not an appropriate legal action.

When it comes to things the court's reference to thatInternet providers should not have a responsibility tomake an assessment as to whether a given site orservice will be stopped or not, it appears that in asituation like this is precisely the courts to undertakethis review. Such court test of whether a currentinternet service will be stopped is considered short bythe court in the first paragraph on page 9 in the rulingwhere only referred to that there will be a "right

technical unfortunate situation as it is that manyInternet providers in Norway, and a very significantnumber of sites that may be controversial." This is nota correct interpretation of the law contrary to thereservation, and will lead to a very unfortunate legalstate.

First place in both commerce Directive (2000/31/EC)Article 12.3 cf section 45 of the Preamble, copyrightdirective Article 8.3 cf paragraph 59 of preamble andthe Norwegian implementation of these in ecommerceAct 20 and Disputes Act 32-1 (3) cf Disputes Act,Chapter 34, Copyright Act 54 third subsection, the

Copyright Act 55 first paragraph of Culture andChurch Affairs letter dated 24 September 2007 up tothe deviation based on the trial court in cases such asthis. Court order based on the court trial has thus beenassessed and found suitable by the legislator in boththe EU and in Norway in such cases, although it wouldinvolve "about a very significant number of sites thatmay be controversial," see things the court's ruling onpage 9. Electronic Commerce Act further statesexplicitly that the imposition of the violation shall beterminated or prevented, may be grantedindependently of any immunity from criminal *14 orcivil liability and the absence of a general obligation to

control, monitor or investigate such matters.

Secondly, it is not correct, as the court seems toassume that there will be many such cases because "itinvolves many Internet providers in Norway. Asoutlined in the Post and TelecommunicationsAuthority's report on the Norwegian eco-market - 2008page 33, the nine largest Internet providers in Norwayalone has a market share of approx. 90%. Regardless,it should not be necessary to institute proceedings for


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the court to each Internet service provider in eachcase. Other Internet providers are not legally obligatedto continue to contribute to copyright infringement thata court has ordered an Internet provider to blockaccess to. The reason has been stated to continuesuch participation - that Internet providers do not evenwant to consider the question of blocking - ceaseswhen the question has been legally tested. They willthus be able to comply with the Court without the issuealso be raised against them. This has also been thepractice for example. in Denmark.

The court's interpretation of the law contrary to thereservation will mean that a party will be precludedfrom lust injunction or remove the action because theproblem the party is trying to prevent too extensive. Itrecalled that the general provisions on security inDisputes Act 34-2 and court costs Disputes Act

Chapter 20, etc.. To restrict groundless lawsuits, andthat there is talk about making responsibilitiesapplicable to Telenor, but only to get a temporary courtorder that Telenor to block access to a specificservice, The Pirate Bay, which has the primarypurpose of facilitating illegal file sharing and that suchsharing takes place in a massive scale through.

The court's reason for not consider Telecom'sparticipation as unlawful, is not in accordance withTelenor's own party's representative explained at thehearing, namely that in Denmark, where Telenor'ssister company has been ordered to block access to

The Pirate Bay (cf. ruling from Eastern Division of theCourt of Appeals of 26 November 2008), were notencountered any such problems that the court fear.

The court takes its assessment does not take intoaccount option, which is that aggrieved copyrightholders, rather than to institute proceedings againstone (or at most a few), Internet providers, to instituteproceedings before the courts against each of theapprox. 140 000 unique Norwegian users each dayparticipating in illegal file sharing via The Pirate Bay. Itwould really be a straight technical unfortunatesituation, and it avoids a requirement for just about

blocking instead be directed against the Internetprovider in accordance with EU Directives and theNorwegian implementation of the Directives system.

Legal Dispute Reservation is a question whether itshould be made a restrictive interpretation in order toprevent any unreasonable results to ascertaincomplicity liability. Proposition. No. 90 (2003-2004)"The law of punishment" it is stated in the report of the

current law that the question of law violation is aquestion of exceptions to reach a reasonableoutcome. What is *15 unlawful participation istherefore dependent on what is possibly the result ofone or the other interpretation. In this case, thequestion is whether it is reasonable to demand thatTelenor is blocking access to The Pirate Bay for theirend users. It is therefore important that this is aboutblocking access to one service which has the mainpurpose of facilitating illegal file sharing and makeavailable huge amounts of illegal material, and not ademand for punishment or compensation. It istherefore not a question of punishment-worthiness, butabout the reasonableness of plaintiffs 'claims to blockTelecom's end users' access to The Pirate Bay.

The fact that under Norwegian law to be separated inmatters like this between on the one hand, criminal

and civil liability and, on the other hand, the injunctionto bring the infringement to an end or prevent them,provided expressly by the commerce Act 20Electronic Commerce Act 20 states that serviceproviders may be required to bring an infringement toan end or prevent it, even though they may be freefrom criminal and civil liability for ecommerce Act 16 to 18 The service provider can not be imposedcriminal or civil liability may thus under Norwegian lawis not used as justification for appropriate serviceprovider can not be ordered to bring an infringement toan end or prevent it. That this distinction must also bebased on infringement of copyright and related rights

are expressly stated in the Ministry of Culture andChurch Affairs letter dated 24 September 2007.

The distinction between a possible criminal and civilliability on the one hand and, on the other hand, theinjunction to bring an infringement to an end or preventit follows clearly also of both commerce DirectiveArticle 12.3 cf section 45 of the preamble and theCopyright Directive Article 8.3 cf section 59 in thepreamble. Copyright Directive Article 8.3 poses thusno requirement for criminal or liability for the ban to beclosed down against the men, and Section 59 of thepreamble states explicitly that the possibility to apply

to have abandoned such a ban should exist even if theman's actions are covered by an exception accordingto the Copyright Directive Article 5 (including theexception for making temporary copies in Article 5.1implemented in Norwegian law, the Copyright Act, 11a) and liability therefore be unenforceable.

Both system legislator has established the ElectronicCommerce Act and reaffirmed that also apply to theinfringement of copyright and related rights, and


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Norway's obligations under international law, thusimplies that there must be a distinction betweencriminal and civil liability and the injunction to bring aninfringement to an end or prevent it. The serviceprovider can not be imposed penalty or liability, maythus under Norwegian law is not used as justificationfor appropriate service provider can not be ordered tobring an infringement to an end or prevent it.

The steppingstone under Norwegian law is that thetechnical contributors are contributors in the legalsense, follows implicitly by the special provisionscontained therein, we have an exception from liabilityfor such contributors. Without such a basis, wouldspecial provisions for an exemption from liability *16for technical contributors be redundant. An example ofsuch a special provision is Penal Code 254

NOU 2009:1 "Individual and integrity" on page 121stated the following: "To the extent that serviceproviders, web hosts, providers of file sharingservices, and second, to facilitate anonymous speech,they should also have the responsibility to preventsuch utterances do damage". In cases such as in thiscase, where technical contributors, in this caseInternet provider Telenor, to facilitate anonymousspeech - the "opposite" of pointing out and identify aresponsible entity instance. editor, owner or publisher -so ought the technical contributorsdue to the PrivacyCommission's opinion have the responsibility toprevent such utterances do harm, for example. by

bringing them to an end or prevent them.

Telenor is notified of the violations take place, and it ispresented extensive evidence of violations. That theviolations take place, is not disputed by Telenor.Telenor is in other words not required to block on thebasis that they are not even investigated or verified thedata that is transmitted through its network, butbecause they have failed to follow up such notice withadequate measures.

Guilt requirement in the Copyright Act 54, thirdparagraph, cf 55 first paragraph of negligence, see

54 first paragraph. Telenor is notified that it takesplace abuses through their networks on severaloccasions. Telenor dispute does not mean thatviolations take place. The company has been aware ofthis illegal, but has not done anything to prevent theviolations continue. Guilt requirement is thus fulfilled inthis case.

Telenor has a general obligation to control, monitor orinvestigate the information according to the commerce

Act 19, is irrelevant for this question. It explicitlystated in 19 that the provision only regulates ageneral obligation to control, monitor or investigatematters relating to freedom from criminal and civilliability for ecommerce Act 16 to 18 that does notmean that they get such a general study purposes.This provision does not include an order to bring aninfringement to an end or preventing it, see e-commerce Act 20, and any special investigation ofduty relating to the basis for such complicity liability, orimplementation of such an order.

Culture and Church Affairs concludes in his letterdated 24 September 2007 with the service provider "atleast in response to the request from the licenseealleging / information on third-party infringement - atleast what the subsequent violations concern - not [to]be in good faith, and of the basis will then exist."

Overall, this means that the court should assume thatlicensees have a claim against Telenor, which shouldbe prohibited from contributing to making available tothe public and copies via the website The Pirate Bayfor copyright protected works.

*17 For the condition that the licensees mustdemonstrate a basic safety

There is hedging because of both options in DisputesAct 34-1 first paragraph.

There are hedging because the letter ai Disputes Act 34-1 first paragraph. Telenor's behavior - not to blocktheir end user access to The Pirate Bay - makes itnecessary to temporarily fuse. Licensees prosecutionand execution of the main claim will otherwise besubstantially more difficult, as it accounted for above inreality are no other effective options to preventviolations.

A court order will not include an anticipated executionof the main claim. Supreme Court's decision in Rt.2003 p. 1165 states that the main requirement in

cases of copyright violations, the requirement ofrespect for copyrights. Court order requirement is inthis case, a requirement to ensure the respect ofblocking, because it will otherwise be significantlymore difficult to pursue or carry out the requirement ofrespect for copyrights. It appears further fromRognstad, Copyright, page 401-402 that protectionbecause of copyright violations often will be, preciselybecause the continued intervention - in the form offailure of the block - would impede enforcement of


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licensees rights reserved. The same understanding isassumed in the Appeal Court's decision in the LE-2008-48261: "However, the Court of Appeal holds thatthe condition in subparagraph a) is fulfilled. Asmentioned must Nordby "requirements" means that hisideal due respect for the exclusive right to use itsintellectual property available to the public. Then aninterim measure in the form of an order to Sby towithdraw his book from sale, to be a measure toensure the implementation of the underlying claim, notan anticipated consummation of this. "

An interim measure is necessary because in reality isthe only option to prevent the continued infringementof the copyright holders rights. As the court pointed outthere is "no doubt" that the Appellants have requiredthat the Plaintiffs have stopped violations, see secondparagraph on page 9 in the ruling.

The licensees have been working a long time, bothnationally and internationally to stop illegal file sharingin general, and The Pirate Bay - the largest and mostwell known file sharing network - in particular. Theongoing efforts to halt rights violations have includedinformation work, police and civil enforcement inNorway and other countries. A number of inquiriesdirectly to The Pirate Bay has been harselert with andrejected. In 2006, The Pirate Bay police, and Swedishpolice took seized the equipment of the service. In2009, convicted Stockholm tingsrtt men behind ThePirate Bay to long prison sentences and large

compensation payouts, and The Pirate Bay's Internetservice provider was required to block access toabused film and music work. The consequence hasbeen that The Pirate Bay has moved the service toother Internet providers in different countries. Despiteall these measures, thus continuing the extensiveviolations via The Pirate Bay.

*18 Norway has hundreds of cases of rightsviolations by The Pirate Bay has been reported to thepolice since 2006. All but one are dropped. Further, in2008 directed inquiry to Internet providers about thehundreds of other, similar cases of rights violations by

the service. Leading Internet providers, includingTelenor, declined through his organization ICT Norwaycategorically to communicate to affected end users inrespect of such notifications. Neither of thesemeasures, in other words brought. It is thereforenecessary to have an interim measure.

Although a blocking The Pirate Bay could be possibleto work around, it will prevent many from accessingthe site. A court order will be effective. The Supreme

Court has held that seizure of the domain name iseffective, see Rt. 2009 side1692: "Even if a websitewill be available through the IP address even after thedomain name has been put out of operation, it followsfrom the rationale to operate with domain names thatavailability will be significantly reduced."

Also the condition in subparagraph b is satisfied.There is a need for a temporary court order to preventsubstantial harm or inconvenience. According to theRt. 2002 Page 108 shall be the assessment of thisoption made a composite assessment of "theimportance of the disputed legal issues is for theplaintiff, where plaintiff is a great need for interimmeasure, how radical an interim measure would be,Defendant's behavior, etc."

It is not disputed that there is extensive rights

violations by The Pirate Bay through Telenor'snetwork. These violations result in great economiclosses for the Appellants. The Appellants have also anurgent need to stop the violations through aninjunction blocking as this in reality is the only option toprevent continued violation of their rights. Subsequentfinancial responsibility for the violations is not possibledue to the Internet provider's exemption from liabilityfor ecommerce Act 16 and because experience isdifficult or impossible to retrospectively document theextent of such violations, challenges that increase theoverall extent of violations.

An injunction blocking will not be particularly intrusivefor Telenor as the company and end users otherservices - like e-mail, banking, public services and allother services apart from the illegal file sharing via ThePirate Bay - will be untouched by such a blockage.Furthermore, the same technology already used toblock child pornography, could also be used to blockTelecom's end users' access to The Pirate Bay.Telenor's standard subscription terms for generalaccess to such blocking to Telenor's end users, anaccess Telenor uses of other forms of abuse of theInternet link.

The fact that the licensees already suffered significantlosses are also not preclude the existence of securityreason, see RG 2001 page 253 where it was deemedto be hedging because *19 although the greatest riskof loss related to the time before the injunction wassettled . Violations taking place through Pirate Bay issustained and is still going on a massive scale, andthere is therefore securing due in respect of theseviolations.


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To the balance of interests

An injunction blocking will not be in obviousdisproportion to the interests of the Appellants that themeasure is approved, cf Disputes Act 34-2, secondparagraph.

It appears from the preparatory works for theEnforcement Act, Proposition. No. 65 (1990-1991) p.291 that it should be made a weighing of interests:"The second paragraph stresses that an injunction cannot be enforced if the harm or inconvenience to thedefendant applied, are in obvious disproportion to theinterest the plaintiff has in the court order is decided.The provision clarifies that for the existing injunctionsapply a principle of proportionality which is taken intoaccount all the interests involved. "

The wording - "clear disproportion" - indicates thatthere is a high threshold for denying a decision oninterim measure. As mentioned above performsalready Telenor block other material, and thenecessary technology is in place. Blocking will not bein breach of Telenor's standard subscription terms.There is therefore no danger of loss of Telenor if thecompany is blocking their end users' access to ThePirate Bay. As accounted for above, no freedom ofspeech and freedom of information preclude adecision about blocking. In balance, it is also importantthat it is not about blocking end users' access to theInternet - it's just a matter of blocking access to a

single service, The Pirate Bay, which is in a uniqueposition with regard to the extent of violations andattitude licensees to attempt to safeguard their rights.If The Pirate Bay was to change dramatically, and putinto a system where service rights trusts copyrightedworks that are offered via the service, open DisputesAct 34-5 that it made a renewed assessment.

An injunction blocking will not be in obviousdisproportion to the Appellants interest in the courtorder will be decided.

It is for this abandoned such a claim:

1. Telenor Telecom Solutions AS forbidden tocontribute to making available to the publicand copies via the website and explainedtracker The Pirate Bay for copyright-protectedworks and works which Plaintiffs havecopyright or related rights. *20

2. Telenor Telecom Solutions AS is ordered tomake the necessary step that is likely toprevent Telenor Telecom Solutions' customersto access the Internet addressesthepiratebay.org, thepiratebay.com,thepiratebay.net, thepiratebay.se,thepiratebay.nu, piratebay. net, piratebay.org,piratebay.no, piratebay.se andtracker.openbittorrent.com and related subpages and sub domains.

3. The Appellants awarded costs of the case withthe addition of the statutory penalty from thedue date and payment is made.

Respondent, Telenor, has essentially stated the

following:

Main arguments

It maintains that the Appellants can not substantiatethe claim or security reason and Telenor will come outclaiming that the appeal is rejected and that awardedlegal costs. The claim that the final applying paragraph1 of the things the court's ruling is correct and theRespondent may substantially joining the courtevidence evaluation and rettsanvendelse this point.However, the court noted that things rettsanvendelseconcerning Final applying paragraph 2 of the legal

expenses are incorrect.

Telenor can not see that the appeal contains newfactual or legal arguments. Respondent makes thesame assertion current basis and rules of law that thedistrict court. The Appellants claim is completely newin the Norwegian context. Previously, licensees aimedclaim against internet customers who have carried outillegal acts on the Internet or against players that havedriven illegal web services (such as discussion forums,websites or file sharing services).Now, the Appellants elected to correct claims againsta player who only offer of the Internet infrastructure.

Telenor maintains that Internet providers do not haveto block its customers access to websites and onlineservices

For the actual basis for the case

The Appellants have the entire case, including inappeal, draws attention to the website The Pirate Bay.The relevance of this is however limited. What is ThePirate Bay Telenor highlights the undisputed fact that


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there are no illegal content on The Pirate Bay website.However, The Pirate Bay facilitates that web users canget in direct contact with each other, so that they canshare files among themselves. Such sharing may belegal or illegal, depending on user preferences.

The real issue is, however, Telenor's role as Internetservice provider. The central question is whetherTelenor - in its capacity to provide access to theInternet - can be considered as contributing tocopyright infringements taking place using the toolsThe Pirate Bay offers.

*21 Telenor does not contest that the company hascustomers using, for example, The Pirate Bay toviolate the Appellants rights, but this is just a premisefor the question of Telenor's potential liability to blockThe Pirate Bay. Any blockage of duty can not be

dependent on how the site is technically designed orhow many users it has. Legal Set would Telenor's roleremained the same whether the case was about adifferent site or another form of copyright infringement.This illustrates that the case is not about The PirateBay specifically, but about blocking potentially illegalwebsites in general.

Telenor's position is that it either is or should be,internet providers task to block sites, thus censoringparts of the Internet, at the request of copyrightholders or rights-pretenders. Such a situation couldhave far-reaching and potentially very adverse

consequences for the flow of information on theInternet. A blockage of duty will in practice mean thatInternet providers must assume a role that issupposed to be reserved for the prosecuting authorityand courts. Therefore, Telenor, as the industry atlarge, taken a decision in principle to how blockingrequests from licensees and rights-pretenders behandled. All requests are handled equally. Telenortakes no position on whether requests are adequatelysubstantiated in fact or law. As an Internet serviceprovider Telenor has not any assumption or the abilityto make such assessments of the many thousands ofrequests are received monthly.

The relationship between Telenor and The Pirate Bayis not described in the appeal. It is an undisputed factthat there is no relationship. Telenor is not The PirateBay's ISP, and Telenor have not any other actual orkontraktuelt relationship with The Pirate Bay. Inaddition to giving its customers access to the Internet,which among other things, can be used to visit the siteThe Pirate Bay and other similar sites, Telenor doesnot have any role in the illegal file sharing taking place.

Telenor delivers an entirely generic service.Comparison with other providers of communicationsand infrastructure services, such as telephone,electricity, logistics, transport, etc., including PostOffice and Public Roads Administration, is nearby.

To the condition that the licensees should have a"claim" against Telenor

The Appellants (main) requirements are described as"respect for copyright". The requirement justified insaying that "Telenor contributes to The Pirate baysand Telenor end users' illegal actions." Since ThePirate Bays actions do not constitute direct violationsof the law, but any contribution to copyrightinfringement, the relationship between Telenor andThe Pirate Bay that is a question of complicity in

contributing to copyright infringement.

Telenor makes primarily argued that the Appellantshave not authority for his claim.

*22 The e-Commerce Act gives ISPs unconditionallyresponsible freedom. Internet providers shouldtherefore not be responsible for the traffic (files)transmitted in their networks, see 16 Theresponsibility of freedom is in principle justified,including the protection of freedom of speech andfreedom of information. Electronic Commerce Act 19confirms that ISPs have no control general obligation

or duty investigation with respect to the traffic in theirnetwork. Internet providers have no obligation to carryout control, investigation or other action on the requestof the licensees. Electronic Commerce Act 20, thatthe Appellants believe "establishes" an order blocking(ankens p. 14), contains only one reference to "otherlegal grounds" and thus not an independent basis for aclaim, which the district court correctly pointed out. Inany case, not commerce law authorizes a demand for"respect for copyright".

Copyright Act permits any replacement, penalty orforfeiture claim, cf sanctions provisions of 54 - 56 It

is undisputed that Telenor can not be imposed onsuch claims. However, copyright law contains no legalrequirement for some respect. Regardless excludesCopyright Act 11a internet providers actions from theauthor's exclusive rights, and the Appellants can notpull back in action exclusive sphere by constructing acontribution liability.

Copyright Directive Art. 8.3 provides no independentauthority for the Appellants claim. EU-directive does


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not have direct effects in the Norwegian law, and theprovision was not actively implemented in Norway.Whatever does not give instructions Directiveprovision in any court order unconditional right. Thismeans that the passive implementation or directive-conform interpretation does not give copyright law orcommerce law a meaning that permits licenseesrequirements.

Culture and Church Affairs letter dated 27 September2007, that the Appellants ascribe central importance inthe interpretation of the Directive, does not imply thatthe injunction can be enforced in this case. The letterdescribes a different situation than the present, andthe Ministry has nevertheless not express anunqualified right of the court order situation in the letterreferred.

Under the assumption that the authority would be, doTelenor subsidiary claims that Telenor does notunlawfully contribute to violations of the Appellantscopyright. The Appellants argued both active andpassive participation. It went out anyway during theoral hearing for the court that it actually sets arepassive complicity refer to. This continued in theappeal statement, in which Telenor's behaviorparticularly described as to "refrain from blocking theirend users' access to The Pirate Bay".

For unlawful active participation (if applicable) requiressomething more than that we only provide a generic,

legal service. The court describes Telenor's service asan activity appears to be somewhat oversimplified.Telenor performs no activities specifically related toillegal *23 file sharing (rather the opposite, byenlightening their customers and others that filesharing must be consistent with the author's rights).

It follows, among other things of the Ministry'sassessment of the preparatory works for thecommerce law, Proposition. No. 4 (2003-2004), thatproviding access to the Internet, whether access isbeing used for illegal purposes, as the starting point isvalid also without the responsibilities that freedom was

legally through ecommerce Act 16: "Whoever offerstransmission or access services under 16 isprobably already now exempt from liability for theinformation they transmit only". This means that suchservices as a starting point can not be consideredillegal participation.

For unlawful passive participation requires a specialconnection between the principal and contribute, and aparticular duty of contribution to act. It can be

determined that there is no connection betweenTelenor and The Pirate Bay, and that there is no otherthan a normal connection between Telenor and ourcustomers. It can be further noted that Telenor is notin any case have a duty to act, but rather by the laware given the freedom not to act.

For the active or passive participation shall beunlawful, it must also be expelled sake. Telenor hasnot acted improper. Because there is no obligation toblock the sites before any administrative or judicialdecision, it determined that Telenor has not violatedany standard care in this matter. On the contrary,considers Telenor and the industry at large that it isnot complying with the blocking requests from civilparties are the most attractive/efficient treatmentoption and also the approach that is consistent withapplicable law.

In any case, the main requirement and the court orderrequirement constitute a violation of freedom ofspeech and freedom of information, see Constitution 100, ECHR Art. 10. A blockage of duty will mean thatTelenor will have to keep their customers' ability tocommunicate and receive information on The PirateBay. This will also include lawful content indisputablefound on The Pirate Bay. For example, use this as acommunication channel of political opinion expression.It is not imperative that this legal material can also beacquired through other channels. Freedom of speechand freedom of information a rule prohibiting prior

censorship would be violated by a court order in thismatter. Freedom of speech and freedom of informationmust weigh most heavily when the case is not onlyconsidered in isolation, but viewed in light of the far-reaching consequences a court order in this casecould have, cf Kyrre Eggen Ytringsfrihet ["Freedomof Speech"], 2002, page 157 et seq

Should the Court nevertheless finds that infringementof freedom of expression here will be provided afterthis clear legal authority. As the court in its rulingsuggests, there is no clear legal authority for theAppellants claim. It applies a proportionality principle

for the infringement of freedom of expression, seeECHR, Art. 10. The same applies a proportionalityprinciple for the limitation of the EEA laws fourfreedoms, such as commerce directive andecommerce law is founded on. However, there is noproportionality between the Appellants court-order-requirements and *24 the actual base that is invoked.While the claim is based on some of Telenor'scustomers have used The Pirate Bay to the illegal filesharing, will require a court order to block all Telenor


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customers' permission to use The Pirate Bay to theillegal and legal purposes in the future.

To the condition that the Rightholders mustdemonstrate a reason

Telenor maintains that there is no security reason.

The Appellants have experienced decline in turnoverin recent years. They do claim that this is especiallydue to illegal file sharing. It is claimed that one losesseveral hundred million annually, meaning that eachmonth with illegal file-sharing leads to a loss of tens ofmillions. Against this background, the Appellantsargued that because hedge exists by virtue of bothDisputes Act 34-1, first paragraph a and b. Bothoptions poses a necessity demands. Telenor arguesthat the necessity requirement is not fulfilled in this

case. The Appellants argue in the appeals section 7.1that the injunction is necessary because "in reality isthe only alternative" to enforce their rights. Particularreference that although the people behind The PirateBay is doomed to replacement and imprisonment inSweden, The Pirate Bay is still available.

It can be determined that it took six years from ThePirate Bay was established in 2003 to the Appellantsfiled for injunction against Telenor in the summer of2009. In case there is evidence that the licensees, byIFPI, already in 2004 had set up a global strategy onhow to enforce their rights against illegal file sharing. It

is also submitted documentation showing that theAppellants counsel over a long period of time has heldseveral lectures where they have advocated licenseesthe right to demand measures against internet serviceproviders, without the same time have realized thisright

The licensees in Denmark took out petition for courtorder against Internet service providers in 2006 (Tele2 case, regarding site All of MP3) and 2007 (Sonofoncase, concerning the site The Pirate Bay). In Norway,the licensees since 2003 had the opportunity topetition for injunction against The Pirate Bay, covet a

temporary court order or take out civil action directlyagainst fildelere or request a temporary court order ortake out an ordinary lawsuit against Telenor. Duringthis period, several of the Appellants also discontinuedthe use of technical protection systems, which is ameans to limit illegal file sharing. First, the summer of2009 was petitioned for a temporary court orderagainst Telenor. Yet is not an ordinary lawsuit againstthe company was out, even if the petition is based onthe disadvantages that the Appellants applied for the

period between a court order ruling and a court ruling.Any necessity of a court order can not be Telenor.

Telenor, however, has long worked on the side oflicensees for the establishment of good solutions forthe legal sale of music on the Internet. Telenor'sposition is that such solutions are a necessaryprerequisite for online sales, and that they cancompete against and thus *25 discourage illegal filesharing. Therefore, Telenor, together with The RecordCompany and Asono, as recently invested substantialresources to launch a download service and asubscription service for the sale of music. Telenor alsooffers a service for legitimate online sales of movies.

In case there is presented a survey prepared by TonoSwedish sister organization STIM, which concludesthat nine out of ten music users on the Internet are

interested in paying for legal online subscriptionservices for music. That good, legal solutionscontribute to increased turnover is supported by IFPIsown sales statistics. The statistics show a tremendousincrease in legal sales of music via the Internet in2009.

For Telenor appears the case almost as an ordinaryaction disguised as a petition for injunction. If theAppellants be granted pursuant to the questionwhether there is a requirement, they may neverthelessnot be granted pursuant to the question whether thereis any security reason.

To the district court review of the substantiveissues

The court first makes an assessment of Telenor'sprincipal argument in case of virtue. It correctlydetermined that neither the commerce Act 20, orcopyright directive Article 8.3 provides authority, asthey only contain references to other legal grounds.The court then assesses whether the Copyright Actprovides authority. It commented that it follows as anecessary consequence of copyright infringement, see

Copyright Act 2, that the licensees must be able todemand that the infringement of exclusive rights isstopped or prevented. Here it may seem that the courthas mixed assessment of the main demands and thecourt order requirements. Although a court orderrequirements may be that violations be stopped orprevented, must be a main demands established inthe Copyright Act's sanctions policy, which onlyprovides instructions on damages, penalties andconfiscation, but rather not halt or hindrance.


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After expressing uncertainty as to the legal question,considering the court Telenor's subsidiary contention -that Telenor, if authority exists, not negligently orintentionally contributing to copyright infringement. Thecourt found that Telenor's acts constitute physicalparticipation of copyright violations, but becauseTelenor's actions are the same regardless of networkaccess used for lawful or unlawful purpose, accordingto the court that participation is not unlawful. The courthere has chosen one of two approaches to theconcept of participation - an approach that may lead tomisunderstandings. The approach the court haschosen is to first decide whether Telecom's businessis a fact / technical requirement for the main man'sactions and then make an appraisal of the concept ofcomplicity by a court against reservation. It is ofcourse so internet providers services constitutes a

prerequisite for any illegality on the Internet. The samecan be argued about the suppliers of PCs and otherforms of technical equipment and services. Suchparticipation actually referred to as "technicalcooperation".

*26 Being offers services that are a physical conditionfor an illegal act is not sufficient to be consideredcomplicit in the legal sense.

The more common approach, the court did notchoose, is to make these two steps in one process, ieto understand and interpret a law against reservation

in the term "participation". The fact that the courtbased its legal battle on the reservation - that it isabout a legal service which is used by some for illegalpurposes - used in theory and practice as a normalcircumstance that makes the plot falls completelyoutside the concept of participation. This has beendone already in the preparatory works for the CriminalAct of 1902: "As illegal accomplice to unlawfulconditions should be considered namely never acts,which in itself pursues a legitimate conditions, theyend implicite also provide accommodation for anythingillegal."

As the result of the two approaches is the same, it isstill not decisive how one chooses to attack theunderstanding of the concept of participation. Havingestablished that Telenor's legal service does notconstitute unlawful participation based on the fact thatTelenor's service is the same regardless of networkaccess used for lawful or unlawful purposes, the courtfurther in the assessment of the legal battlereservation. It appears somewhat unclear why thecourt continues the assessment of the legal battle after

having concluded that the legal battle does not exist,and statements, therefore, almost as an obiter dictum.

This assessment takes the court first position on thepractical and fundamental consequences that a courtorder will be eligible for Telenor and other Internetproviders. Then considered the Appellants needed tostop violations. Telenor believes that the starting pointfor the latter assessment is something wrongful. LegalDispute Reservation is intended to prevent actions thatit would not be reasonable that is affected by the legalwording is considered illegal. The basis for thisassessment must be the action itself (here: whether itis reasonable that internet providers otherwise legalservices shall be considered an illegal contribution tocyber crime). It is of course not the case that thedegree of licensees need for a court order makesinternet providers services more or less illegal. Even

the Appellants arguments about the right against thereservation takes improper basis of the"reasonableness of the plaintiffs' claims."

To the Appelllants arguments and claims in theappeal

The Appellants have laid claim that Telenor isforbidden to contribute to actions that occur "throughthe site and explained tracker The Pirate Bay"."Website" and "track explained" are two slightlydifferent conditions. As far as Telenor does not

understand The Pirate Bay longer a tracker. Thismeans that the statement on this point can not betaken into account.

A tracker can simplified be described as an electronicdirectory of contact information used to establishcontact between your users. This connector can beused for a variety of purposes, legal and illegal,depending on the users' choice. Among other things,the contact is used *27 for file sharing without thelicensee's consent. File sharing can also happenwithout the tracker, by the contact establishedbetween network users by other means (eg, via e-

mail).A tracker has no necessary connection with a website.There are a number of trackers on the Internet. EarlierThe Pirate Bay a tracker. This was the domaintracker.thepiratebay.org. This tracker is now closed.

As far as Telenor understand, on the file sharing thatis currently associated with The Pirate Bay, using avariety of trackers, or it happens without the help oftracker. The above also illustrates with clarity the


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messy consequences will be if Internet providersordered to block websites and services. The Internet ishighly dynamic and decentralized. Websites and webservices change, established, closed down and linkedcontinuously. Internet providers have no way ofkeeping up to date on any such change, a blocker ofduty requires.

Before Telenor received the required blocking ThePirate Bay, one had received requests from licenseesto disclose clients' identities to the licensees and topass on to their customers a notice letter fromlicensees. The Appellants point out that Telenor hasnot complied with such requests. Telenor guess this isdone to try to establish the guilt of Telenor. It isundisputed that Telenor has no obligation to complywith such requests. Telenor considers also that it isnot right for this, see Act 2-9. Telenor's opinion is

supported by the Norwegian Post andTelecommunications Authority's letter, see their letterof 14 April 2009: "distribution [is] a breach ofconfidentiality Internet providers have for [e-commerceAct] 2-9.

The Appellants points to the copyright directive whichcase the basic starting point. The extension added tothe Ministry of Culture and Church Affairs letter dated27 September 2007 decisive weight in support of theAppellants understanding of the directive. TheAppellants claim that the Copyright Directive and theMinistry's letters, "the head is not [is] considered by

the court" (the appeals section 5.1 and 5.3). What thecourt premises imply, however, no such conclusion.What the court premises imply only that the letter andthe directive is not given decisive weight. This is in linewith Telenor's vision.

The appeal argued that "the Copyright Directiveprovides a general and unconditional access forlicensees to demand measures against intermediariesto prevent third party infringement...". This is simplisticand gives a false understanding of the directiveprovision. It follows from the wording of the directivethat only provided instructions for each Member State

to set the rights holders "in a position to apply [petition]for an injunction [court order]." According to the teeth's59 points left it to each Member State to determine thespecifics "conditions and modalities" for this. TheDirective can hardly be understood as a "general andunconditional access (...) to require deviation."

*28 In the appeal it is argued further that theCopyright Directive does not contain any right againstreservation and does not require the fault. It is unclear

what the Appellants here allege, as it is recognizedthat the Copyright Act sets out terms of guilt and thatthere is a law against reservation. Whatever is left isreferred to the individual member states to establishcriteria. Guilt condition and the right against thereservation is not in any way contrary to the directive.For this reason, Telenor also difficult to understandhow any directive conform interpretation of Norwegianlegislation will provide a different result than a generalinterpretation.

The appeal argued that "Culture and Church Affairshas assumed that the licensees have such a 'claim'against the Internet providers (...) and that thisrequirement can form the basis for an interimmeasure." The Appellants have here plus a ministryposition that the letter does not justify. The lettermentioned the Danish TDC case, the ISP TDC was

required to block an illegal file-sharing service that hadits Internet access subscription with TDC. It is clearthat The Pirate Bay does not have internet access atTelenor, but as a subscriber of another Internetservice provider. Regardless of the Ministry's letter cannot be understood to mean that permission oceanshave a claim in such cases, a subscriber, but as anexpression of the licensees, depending on thecircumstances, could have a claim, but that it is up tothe courts to consider. The inaccurate perception ofthe letter meaning entails a wrongful conclusion that"the court's ruling is inconsistent with the Ministry ofCulture and Church Affairs letter.

The court in its decision laid emphasis on the principleworrying by the fact that ISPs incur a responsibility toconsider the legality of websites that rigjtjp;ders desirestopped. As mentioned in previous process-briefTelenor receives monthly about 14,000 such requests.If Telenor imposed a duty of blocking the presentcase, Telenor must continuously assess whether thesame obligation applies to all other requests received.The Appellants argue that the court review at this pointis wrong. It appears that it is the courts, not Internetservice providers, which should make thisassessment.

Telenor has difficulty understanding the Appellantsargument on this point. The Appellants submit thatTelenor has blocked a liability, not an obligation onlytriggered by a judicial decision. The legal requirementto have to depend on that Telenor has acted inviolation of a statutory obligation that existsindependently of a subsequent judicial decision. If theAppellants be granted pursuant to that Telenor has ablocking duty, will mean that Telenor and other


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Internet service providers are committed tocontinuously consider licensees require blocking -ahead of a judicial decision. This will mean that ISPsthemselves must act as police and courts.

The Appellants have made claims that Telenor hasdemonstrated guilt because you have not doneanything to prevent illegal file-sharing. As part of thisargument shows the Appellants to the commerce lawpreparatory work. In the appeal pronounced it: "Itappears further to the Proposition. No. 4 (2003-2004)*29 page 32 left-hand column where it is determinedthat the service provider is not exempt from suchinspection duty if he receives well-documentedinformation ". The Appellants have here referred to theMinistry's account of the previous consultation paper,without disclosing this. Ministry's subsequentassessment on the next page (p. 33, Section 10.3)

specifies that the consultation note ty statementsregarding exploration obligation only applies toproviders of storage services, known as web hosts,but that is not Internet service providers like Telenor.

Although the Appellants should be granted inaccordance with the existence of claims and safetyreasons, can not turn right following the statement thatis closed. The claim gives little indication of specificactions are required based on general legalcharacteristics. It is thus not suited to provide preciselegal effects like Telenor with sufficient degree ofpredictability can relate to.

To the question of legal costs

Although the court gave Telenor virtue, was notawarded Telenor legal expenses. The court referred tothe Disputes Act 20-2, third paragraph, whichpermits exceptions to the event "substantial reasonsmake it reasonable. Particular emphasis is placed ona) whether there was good reason to have the casetried because it was questionable...". The exception tothe general rule was justified in saying that "the matterhas been questionable as it raises fundamental issues

and that it therefore had good reason to have the casetried."

Telenor can not see that the court has expressedsome doubt. The court has not even gone into theother legal submissions including the issue of securityreason. Off the court premises may therefore notderived any doubt about these matters. The fact thatthe case raises questions of principle does not in itselfmatter

Documents

Nordic Records Telenor - Norwegian Court of Appeals 9 Feb 2010