Unofficial Translation of the “Direct connect-Oslo” case

Translation by Senior Researcher Henrik Spang-Hanssen

and Prof. Tyler Ochoa, Santa Clara University School of Law.

Decision of 27 May 2005

from
Oslo Trial Court
Citation: Toslo 2004-94328

On the Bench: deputy judge Johan Berg together with expert lay-judges senior-engineer
Terje Knudsen and college-teacher Stein Marthinsen.

Prosecuting authority (police solicitor Espen Skjerven)

vs.
A.

Copyright law: A established three file-sharing services for music. After an extremely
thoroughly deliberation on whether there was evidence of intent and of acting as an accessory, the
court held the services violated copyrights, performing artists rights and phonogram-producers
exclusive rights. An exemption from liability under the E-commerce Act was not present.

A was born … [in] 1969 and lives in X.
He is single, without supporting obligations,
does not own property, and works at a gas
station.
By indictment from Økokrim1 he is
charged at Oslo Trial Court for violations of
Claim I.
The Copyright Act of May 12, 1961 no. 2
§54, first para., subsection a, see also
second, third and fourth paras.
that penalizes a person who, under
particularly aggravating circumstances,
violates this law, by infringing provisions
laid down for the protection of copyright in
or in accordance with Chapters 1 and 2, or
who is an accessory to such.
In assessing whether particularly
aggravating circumstances exist, importance
shall primarily be attached to the damage
done to the copyright holder and others, the
1
Translator: Special national prosecution section on
Economic Crimes
profit gained by the offender, and the
general extent of the infringement.
Any attempt at a willful infringement as
specified in paras. 1-3 may be punished in
the same way as the completed crime.
See §2 first, second and third paras.
under which, subject to the limitations laid
down in this Act, copyright confers the
exclusive right to dispose of a work by
producing copies thereof and by making it
available to the public, be it in the original
or an altered form, in translation or
adaptation, in another literary or artistic
form, or by other technical means.
The transferring of a work to any device
by which it can be reproduced shall also be
considered a production of copies.
A work is made available to the public
when it is performed outside private
premises, or when copies of the work are
offered for sale, rental or lending, or
otherwise distributed or displayed outside
such premises.

Direct connect-oslo_ENG – page 1

 Unofficial Translation of the “Direct connect-Oslo” case
See §1 second para. nos. 4 and 5
under which a literary, scientific or artistic
work includes musical works, with or
without words, and cinematographic works.
a)
The basis is the following act or
contribution:
During the period of July 2003 through
May 2003, from his residence, .. in Y, with
use of his own computer with IP-address
000.000.000.0 and/or from another place, A
copied and made public, without the consent
of the copyright owners, a large number of
music files and movie files, in the capacity
as user/operator with the call-name
“smoothmoves”, “Tor”, and “cream”, in
several Direct Connect file-sharing networks
connected to a hub with the name of
Jazzhouse, Lushlife and Jazzgroove, as
described in post Ib, Ic and Id.
b)
The basis is the following act or
contribution:
During the period from April 17 2004
through May 12 2004, with use of his own
computer with IP-address 000.000.000.0 and
domain name jazzgroove.sytes.net that was
placed in NetCom AS’s locations in
Sandakerveien 140 in Oslo, he contributed
as owner and/or administrator of an open
Direct Connect hub with the name of
Jazzgroove, so that a considerable number
of persons (at least 300 users at the same
time) could make available a considerable
number of music files and movie files
between these persons and/or an unknown
number of persons, without the consent of
the copyright owners.
c)
The basis is the following act or
contribution:
During the period from April 10 2004
through May 12 2004, with use of his own
computer with IP-address 000.000.000.0 and
the domain name lushlife.sytes.net that was
placed in NetCom AS’s locations in
Sandakerveien 140 in Oslo, he contributed
as owner and/or administrator of a Direct
Connect hub with the name of Lushlife, so
that a considerable number of persons (at
Direct connect-oslo_ENG – page 2
least 1,000 users) could make available a
considerable number of music files between
these persons, without the consent of the
copyright owners.
d)
The basis is the following act or
contribution:
During the period from July 2003
through December 2003, with use of a
computer with IP-address 000.000.000.0 and
the domain name tu.X25.no that was placed
in NetCom AS’s locations in Sandakerveien
140 in Oslo, he contributed as owner and/or
administrator of a Direct Connect hub with
the name of Jazzhouse, so that
approximately 50 persons made available a
considerable number of music files between
these persons, without the consent of the
copyright owners.
Claim II.
Copyright Act of May 12, 1961 no. 2 §54,
first para. subsection d, see also second,
third and fourth paras.
that penalizes a person who, under
particularly aggravating circumstances,
violates this law, by offering or otherwise
making available to the public works or
fixations as specified in §45, when the
copies have been produced in violation of
that section, or who is an accessory to such.
In assessing whether particularly
aggravating circumstances exist, importance
shall primarily be attached to the damage
done to the right holder and others, the profit
gained by the offender, and the general
extent of the infringement.
Any attempt at a willful infringement as
specified in paras. 1-3 may be punished in
the same way as the completed crime.
See §45 first para.
under which sound fixations and films shall
not be published until 50 years have elapsed
since the expiry of the year in which such
fixation or film was made, without the
consent of the producer; nor shall copies be
made before such time without the consent
of the producer. If the fixation is published
during this period of time, the term of
protection shall subsist for 50 years after the
 Unofficial Translation of the “Direct connect-Oslo” case
expiry of the year in which the fixation was
first published.
a)
The basis is the following act or
contribution:
At the time and place mentioned in # Ia,
he behaved as described, and the material
was copied without the consent of the
property owners.
b)
The basis is the following act or
contribution:
At the time and place mentioned in # Ib,
he behaved as described, and the material
was copied without the consent of the
property owners.
c)
The basis is the following act or
contribution:
At the time and place mentioned in # Ic,
he behaved as described, and the material
was copied without the consent of the
property owners.
d)
The basis is the following act or
contribution:
At the time and place mentioned in # Id,
he behaved as described, and the material
was copied without the consent of the
property owners.
Claim III.
Copyright Act of May 12, 1961 no. 2 §54,
first para. subsection d, see also second,
third and fourth paras.
that penalizes a person who, under
particularly aggravating circumstances,
violates this law, by offering or otherwise
making available to the public works or
fixations as specified in §42, when the
copies have been produced in violation of
that section, or who is an accessory to such.
In assessing whether particularly
aggravating circumstances exist, importance
shall primarily be attached to the damage
done to the right holder and others, the profit
Direct connect-oslo_ENG – page 3
gained by the offender, and the general
extent of the infringement.
Any attempt at a willful infringement as
specified in paras. 1-3 may be punished in
the same way as the completed crime.
See §42 first para. subsection a and
second para.
under which a performing artist’s per-
formance of a work may not without the
consent of the artist be fixed on film or on a
device which can reproduce the
performance.
If a fixation of a performing artist’s
performance is made as specified in the first
paragraph of subsection a, no copies shall be
made of it, nor shall it be published,, without
the artist’s consent,, until 50 years have
elapsed since the expiry of the year in which
the performance took place. If the fixation is
published during this period, the term of
protection shall subsist for 50 years after the
expiry of the year in which the fixation was
first published.
a)
The basis is the following act or
contribution:
At the time and place mentioned in # Ia,
he behaved as described, and the material
was copied without the consent of the
property owners.
b)
The basis is the following act or
contribution:
At the time and place mentioned in # Ib,
he behaved as described, and the material
was copied without the consent of the
property owners.
c)
The basis is the following act or
contribution:
At the time and place mentioned in # Ic,
he behaved as described, and the material
was copied without the consent of the
property owners.
d)
The basis is the following act or
contribution:
 Unofficial Translation of the “Direct connect-Oslo” case
At the time and place mentioned in # Id,
he behaved as described, and the material
was copied without the consent of the
property owners.
Claim IV.
Copyright Act of May 12, 1961 no. 2 §54,
first para. subsection b, see also third
para.
that penalizes a person who, under
particularly aggravating circumstances, vio-
lates this law, by infringing provisions laid
down in or in accordance with Chapter 5.
In assessing whether particularly
aggravating circumstances exist, importance
shall primarily be attached to the damage
done to the right holder and others, the profit
gained by the offender, and the general
extent of the infringement.
See §45 first para.
under which sound fixations and films shall
not be published until 50 years have elapsed
since the expiry of the year in which such
fixation or film was made, without the
consent of the producer; nor shall copies be
made before such time without the consent
of the producer. If the fixation is published
during this period of time, the term of
protection shall subsist for 50 years after the
expiry of the year in which the fixation was
first published.
The basis is the following act:
At the time and place mentioned in # Ia,
he behaved as described.
Claim V.
Copyright Act of May 12 1961 no. 2 §54,
first para. subsection b, see also third
para.
that penalizes a person who, under
particularly aggravating circumstances, vio-
lates this law, by infringing provisions laid
down in or in accordance with Chapter 5.
In assessing whether particularly
aggravating circumstances exist, importance
shall primarily be attached to the damage
done to the right holder and others, the profit
gained by the offender, and the general
extent of the infringement.
Direct connect-oslo_ENG – page 4
See §42 first para. subsection a and
second para.
under which a performing artist’s per-
formance of a work may not without the
consent of the artist be fixed on film or on a
device which can reproduce the
performance.
If a fixation of a performing artist’s
performance is made as specified in the first
paragraph of subsection a, no copies shall be
made of it, nor shall it be published,, without
the artist’s consent,, until 50 years have
elapsed since the expiry of the year in which
the performance took place. If the fixation is
published during this period, the term of
protection shall subsist for 50 years after the
expiry of the year in which the fixation was
first published.
The basis is the following act:
At the time and place mentioned in # Ia,
he behaved as described.
Aggravating circumstances are claimed
to be present, based on the considerable
number of music files and movie files which
were made or were to be made available
during the time-period, because the act had
been done or was about to be done as part of
an organized file-sharing network, because
of the large number of users that had or
could have used the file-sharing networks,
the damage done to the rights holders, and
the extent of the violations.
The charge is reported as it was pursuant
to the prosecutor’s record.
Trial was conducted on 18, 19, 20, 25,
26 and 27 of April. Defendant was present
and denied the claims. The trial was
adjourned on April 20-25 as the defendant’s
counsel had received new evidence on the
afternoon before. The defense attorney
found it difficult to review the material and
had only the opportunity to get a superficial
impression. [He argued that] Witness no. 2
should not be questioned before there had
been time to review the material thoroughly.
The court found several considerations
were present. There was the consideration of
 Unofficial Translation of the “Direct connect-Oslo” case
due process, see article 6 of EMK2 and
§293 second para. of the Penal Code, and
furthermore the court’s ex officio duty to
secure all available information was present.
The court could not overlook that the new
evidence - conversation-logs from the Net –
could be of importance as evidence. The
court found the only alternative was to
adjourn until April 25th.
The court heard six witnesses, and the
extent of documentation presented to the
court was as mentioned in the records of the
court.
The prosecutor asserted that the accused
should be sentenced as claimed to thirty
days of imprisonment and nineteen hours of
community service over ninety days, or
alternatively to ninety days of imprisonment,
deducted by two days in custody. In
addition, the prosecutor sought confiscation.
The defense attorney argued for ac-
quittal, or alternatively for a mild sentence.
The remarks of the court:
The case raises several questions of a
criminal nature that seem to be of first
impression for a Norwegian or a foreign
court. Therefore the court finds it relevant
and necessary to give a short description of
the Internet and the technology which has
been used in the case at issue.
The Internet is an international network
of computers that can communicate with
each other by means of technical standards
and protocols. The Internet had its origin as
an American military research project and
was originally a network for research and
education. Since then has the use of the
Internet expanded to include commercial
services. Today, the Internet exists as
anarchist and uncensored both in structure
and contents. The closest one comes to a
governing body of the Internet is ICANN,
the Internet Corporation for Assigned
Names and Numbers. ICANN seems to be
the only control or administration of the
Internet. ICANN is a non-commercial organ
that covers a broad coalition of Internet
users from commercial, technical and
2
Translator: European Human Rights Convention.
Direct connect-oslo_ENG – page 5
academic environments. ICANN was
originally selected by the U.S. Government
to work as a global consensual organ with
the purpose of coordinating the assignment
of Internet addresses, and working out the
protocol-parameters and administration of
the most central machines of the
infrastructure of the Internet addresses.
The World Wide Web is an Internet
service based on multimedia documents.
Information is graphically presented as
pages on the screen (webpages). These
pages are called homepages if they are the
main page on the website of a person or a
firm. The homepage consists of text and
pictures, but can also consist of other
documents, objects or webpages.
It is the development of the World Wide
Web that has had the largest impact on the
nearly explosive growth of commercial use
of the Internet. It is possible to present a
firm, its products and services on the
Internet with use of sound and
pictures/movies. Further, it is possible to
offer customers direct ordering of goods and
services via the net. The World Wide Web
has become a very important public relations
tool for most types of businesses.
The address-system of the Internet is
shared by all services. For a cybernaut to use
a certain service, he or she must find the
address of that service. Every computer
connected to the Internet is identified by a
so-called IP-address (Internet Protocol). An
IP-address is expressed by four groups of
digits with a period between each group.
Because it is difficult to remember such
numbers, a hierarchical system was
constructed: the Domain Name System
(DNS). In this system, each computer that is
connected the Internet gets a domain name,
which consists of letters and words. The
DNS converts the text-based address to its
numerical equivalent. Therefore, the domain
name is the entry to a certain place on the
World Wide Web and it can be compared
with an address or a phone number.
The domains are a specification of the
area or the category that the actual computer
belongs to and consist of a standardized
suffix of the address. Examples of in-
ternational top-level domains are “com” for
 Unofficial Translation of the “Direct connect-Oslo” case
“commercial”, “edu” for “education”, “gov”
for “government”, “net” for “network” and
“org” for “organization”. Examples of natio-
nal top-level domains are “no” for Norway,
“to” for Tonga and “dk” for Denmark.
The counsel for the defense has
presented some American case law. The
most relevant case for this court is “Metro-
Goldwyn-Mayer v. Grokster”, decided by
the U.S. Courts of Appeals for the Ninth
Circuit, in which on page 11731 is written
(the court’s translation3):
To analyze the legal issues properly, a
rudimentary understanding of the peer-to-peer
file-sharing software at issue is required--
particularly because peer-to-peer file sharing
differs from typical internet use. In a routine
internet transaction, a user will connect via the
internet with a website to obtain information or
transact business. In computer terms, the
personal computer used by the consumer is
considered the "client" and the computer that
hosts the web page is the "server." The client is
obtaining information from a centralized source,
namely the server.
In a peer-to-peer distribution network, the
information available for access does not reside
on a central server. No one computer contains all
of the information that is available to all of the
users. Rather, each computer makes information
available to every other computer in the peer-to-
peer network. In other words, in a peer-to-peer
network, each computer is both a server and a
client.
Because the information is decentralized in a
peer-to-peer network, the software must provide
some method of cataloguing the available
information so that users may access it. The
software operates by connecting, via the internet,
to other users of the same or similar software. At
any given moment, the network consists of other
users of similar or the same software online at
that time. Thus, an index of files available for
sharing is a critical component of peer-to-peer
file-sharing networks.
At present, there are three different methods
of indexing:
(1) a centralized indexing system, main-
taining a list of available files on one or
more centralized servers;
(2) a completely decentralized indexing
system, in which each computer
maintains a list of files available on that
computer only; and
3
Translator: into Norwegian and without footnotes –
HERE copied from the original American court
decision at 380 F.3d 1154, 1158-60
Direct connect-oslo_ENG – page 6
(3) a "supernode" system, in which a select
number of computers act as indexing
servers.
The first Napster system employed a
proprietary centralized indexing software
architecture in which a collective index of
available files was maintained on servers it
owned and operated. A user who was seeking to
obtain a digital copy of a recording would
transmit a search request to the Napster server,
the software would conduct a text search of the
centralized index for matching files, and the
search results would be transmitted to the
requesting user. If the results showed that
another Napster user was logged on to the
Napster server and offering to share the requested
recording, the requesting user could then connect
directly with the offering user and download the
music file.
Under a decentralized index peer-to-peer
file-sharing model, each user maintains an index
of only those files that the user wishes to make
available to other network users. Under this
model, the software broadcasts a search request
to all the computers on the network and a search
of the individual index files is conducted, with
the collective results routed back to the
requesting computer. This model is employed by
the Gnutella software system and is the type of
architecture now used by defendant StreamCast.
Gnutella is open-source software, meaning that
the source code is either in the public domain or
is copyrighted and distributed under an open-
source license that allows modification of the
software, subject to some restrictions.
The third type of peer-to-peer file-sharing
network at present is the "supernode" model, in
which a number of select computers on the
network are designated as indexing servers. The
user initiating a file search connects with the
most easily accessible supernode, which conducts
the search of its index and supplies the user with
the results. Any computer on the network could
function as a supernode if it met the technical
requirements, such as processing speed. The
"supernode" architecture was developed by
KaZaa BV, a Dutch company, and licensed under
the name of "FastTrack" technology.
Both Grokster and StreamCast initially used
the FastTrack technology. However, StreamCast
had a licensing dispute with KaZaa, and now uses
its own branded "Morpheus" version of the open-
source Gnutella code. StreamCast users connect
to other users of Gnutella-based peer-to-peer file-
sharing software. Both Grokster and StreamCast
distribute their separate softwares free of charge.
Once downloaded onto a user's computer, the
software enables the user to participate in the
respective peer-to-peer file-sharing networks over
the internet.
Users of the software share digital audio,
video, picture, and text files. Some of the files
are copyrighted and shared without authorization,
others are not copyrighted (such as public domain
 Unofficial Translation of the “Direct connect-Oslo” case
works), and still others are copyrighted, but the
copyright owners have authorized software users
in peer-to-peer file-sharing networks to distribute
their work. The Copyright Owners assert,
without serious contest by the Software
Distributors, that the vast majority of the files are
exchanged illegally in violation of copyright law.
In this context the court remarks that a
“hub” [or node] is not a machine but
software that as a starting point can be
installed on any PC with sufficient capacity.
Use of the Internet for file sharing of
music has been dealt with before in
Norwegian case law. In “Napster.no” the
intermediate court4 described the use of the
Internet as follows:
“[A]’s business was based on sending other
peoples’ information to napster.no about
addresses to illegal music-files in the net. With
use of a script at Napster.no and the information,
links were made to the specific music-files. The
essential fact in the case is that the cybernauts
that used A’s website, the users, got direct access
to these music-files by clicking A’s links.
Downloading from the place where the music-
files were placed to the user’s own PC was
initiated automatically, and the user could choose
between playing the music, downloading the
music or canceling the downloading.”
The present case is different from
“Napster”. Thus, it is not possible to draw
parallels between the decision5 of
Høyesteret,6 published7 as Rt-2005-41,8 and
the problem raised in this case.
To fully understand the legal
background of the case the court quotes
from the Supreme Court decision in the
Napster-case:9
(41) Pursuant to §2, first para., copyright
gives – under the limits of the Act - sole and
exclusive right to control the intellectual property
4
Translator: of March 2004 from “Eidsivating
lagmannsretts” - unofficial English translation at
<http://www.linksandlaw.com/decisions-135-napster-
norway.htm>.
5
Translator: of January 21, 2005, docket HR-2005-
00133-A.
6
Translator: Norwegian Supreme Court.
7
Translator: in case reporter.
8 10
Translator: and at <http://www.lovdata.no/hr/hr-
11
2005-00133-a.html> (last visited February 2005).
9 12
Translator: See Rt-2005-41, Lov&Data [Law & Data
13
Magazine] 81/2005:3-7.
Direct connect-oslo_ENG – page 7
(42) The preparatory report, Ot.prp.10 no. 26
(1959-60), suggests that the sole and exclusive
right to publish includes any possible way of
making the work known to the public. The third
para. is thus not meant as a legal definition of
“making available to the public”. The term is
technology neutral. I agree with this
interpretation of the law and remark that in the
statement to amendments to the Copyright Act
the term is referred to as a superior term.
(43) The sole and exclusive right to publish
is not lost when the work is published for the first
time. An example of making the work available
to the public is turning on music from the radio in
a shop or a workplace. I refer to Rt-1953-633, the
Bedriftsmusikkdommen11 and the Swedish
Morningtondommen,12 published in NIR-1980
page 258. With reference to Rt-1995-35, the
Smartkortdommen13 there has in legal theory
been made the requirement that the method that is
used must give the public a fairly direct access to
the work before one can speak of accessibility.
(44) It is not disputed that the uploaders
made illegal copying and illegal access available
to the public. However, I stress that if the linking
is regarded as access then it will embrace both
legal and illegal material that has been laid out.
The understanding of what is accessibility must
be the same in both incidences.
(45) To illuminate the question whether the
linking in napster.no was accessibility to the
musical work, the parties have thoroughly dealt
with the technology behind the users’
possibilities of hearing music from links.
(46) It is stated by the appealing parties that
the linking gives independent and direct access to
the music. A on his side has claimed that the
links only contained an address to a website, and
by clicking the link the music was stored
temporarily on the user’s own computer. Only at
this time could the user play, or alternatively
store the music file for later use. A part of the
theory the parties have made reference to points
out that is can be of importance whether the user
by clicking a link continued “being on”
napster.no, or whether he has “moved” to the
website that the links points at. In addition, there
has been an issue of distinguishing between
direct links/deep-linking on one hand and on the
other site surface-links – links to the website’s
homepage.
(47) For me it is not decisive whether it is
one or the other type of link, nor if the user in a
technical sense “is found to be” on his own
Translator: White Paper
Translator: Business-music-case.
Translator: Morning-tone-case.
Translator: Smart-card-case.
 Unofficial Translation of the “Direct connect-Oslo” case
computer, on napster.no, or whether he has
“moved” to the website that is linked to. It is
difficult to see why this should be decisive for
regarding the work being accessible to the public
in sense of the Copyright Act. The decisive factor
must be how the technique works – if and how
access is given. It may be possible to find links
that are coded in such a way that they must be
said not to have been accessible [to the public],
but this has not been particularly illuminated to
the Supreme Court.
(48) There can be no doubt that by making a
web-address known by reproducing it on the
Internet is accessibility.
(49) When the Copyright Act was enacted in
1961 the problem of today was not present. What
makes the evaluation of the principal statement
difficult is exactly the technical possibilities that
the Internet and different software gives. Some
efforts have been made by legislators as to
evaluate liability etc. related to this new
technique. I mention the implementation of the E-
commerce Directive, see Ot.prp. no. 4 (2003-
2004) and the work on the revision of the
Copyright Act. But liability in connection with
linking has not really been dealt with.
(50) The Swedish Tommy Olsson case dealt
also with sound files made accessible through
links on Olsson’s homepage. Högsta domstolen14
regarded this as “public presentation”. The case
was a criminal case, and Olsson was acquitted
because public presentation of a sound recording
was not covered by the recording producer’s sole
and exclusive right, and it was the record
producers that were offended in the case.
(51) The opinion of the German Supreme
Court in 2003 in the Paperboy case, which I have
mentioned before, dealt with another issue and
facts, but clearly pulls in another direction. The
case was presented to the15 Supreme Court in
translation by state certified translator Nils
Nordang. The case dealt with material that legally
was placed on the Net, as opposed to the present
case. On the basis of German law, the act of
making a direct-link to such material was not
regarded as a violation of the copyright law, but
rather as a reference to the work in a way that just
made access easier for the net-users to get a work
that already was accessible for the users.
Regarding the linker’s operation, the translation
states in part:16
“He does not himself make the protected
work accessible for downloading by the public
14
Translator: The Swedish Supreme Court.
15
Translator: Norwegian.
16
Translator: HERE re-translated into English from
the Norwegian decision, not the original German
decision.
Direct connect-oslo_ENG – page 8
and neither does he himself communicate the
work to third-parties on request. For a user that
does not yet know the URL or a precise
description for the reference to the website on the
Internet, the access to work is indeed first made
possible by the help of the hyperlink and thereby
in the literal sense is the work made accessible;
but this is not any different than a reference to a
publication in a footnote in a printed paper or on
a website.”
(52) I remark that the designation “URL”
indicates the address of a website on the Internet.
(53) The Copyright Act has its background
in Nordic co-operation, and the consideration of
Nordic unity is important for the evaluation of
our case, although the decision from the Högsta
domstolen has been criticized and in legal
literature the opinions have been divided on the
question on liability for linking. On its face the
link can appear to be access to the work. The
Swedish decision did not discuss another issue
which to me is a special problem – that the music
files also could have been reached by information
of the web-addresses on napster.no. Even though
these web addresses considered as text are
complicated, to copy them and paste them into
the address-field is easy. It would give the same
direct access.
(54) When illegal accessibility can be
combined with both punishment and civil liability
there needs to be a reasonable sufficient reason
why use of one method is affected but not the
other. The appealing parties have not been able to
give any sufficient reason for this, and I find it
extremely difficult. Furthermore, the Copyright
Act was not written with thought of the technical
evolution we have seen in the last few years, with
the result that the Act at present is under
reconsideration in the Department with the aim of
amendments in part because of this.
(55) The close analogy between direct
linking to a website and giving information of a
website’s address is further illustrated by the
development of accessible software in relation to
the Internet. For both e-mail and ord-processing
can be found software that recognizes an Internet
address. Since it is so much easier just to click on
a link, the software automatically makes an
address available through a click, that is, it
converts it to a direct-link. Thus, pure and simple
this is how references and footnotes that state a
net-address can be changed by the software to
direct-links. This could create problems if a
reference on this basis should be regarded as
accessibility.
(56) The parties have tried to illuminate the
consequences of regarding the linking as
accessibility. The starting point must be that
linking, both to legal and illegal uploaded
 Unofficial Translation of the “Direct connect-Oslo” case
material, only can take place with the owner’s
consent. The appealing parties have referred to
views in theory which hold that placing
something on the Internet must be regarded as
consent to linking. As an example, I quote
professor dr. juris Ole-Andreas Rognstad in
Festskrift til17 Mogens Koktvedgaard (2003) page
472:
“There is no reason for requiring the
originator’s consent to this in general. The
problem can be solved in the same way as
the “consumption-problem”, through a
copyright default rule: Consent for use of
the work is regarded as covering the normal
and usual linking to the pages. Here it is a
question of the more definite limits of the
default rule. However, in this connection
that is another issue.”
(57) Much can be achieved by reading
consent into the normal situation, but there is also
a question of defining limits that can be bases for
both doubt and disputes. Therefore, consideration
of the consequences is a contributing factor for
me to hold that the case must be decided on the
subsidiary basis. This points precisely to linking
of illegal material, and it is such linking the
appealing parties seeks to stop or at least reduce.
(58) I now deal with the subsidiary basis.
(59) Pursuant to §55 first para. of the
Copyright Act, compensation for harm in the
sense of §54 can be given on the basis of the
ordinary damage rules. Aiding is punishable after
§54 second para. It is clear [from the text] and
also from the preparatory work to the law that
damages can be awarded even if there is no basis
for criminal liability. The usual requirements for
evidence in the field of damages is being used,
not the strict requirements for evidence of both
objective and subjective facts in the criminal law.
(60) The appealing parties have alleged that
A with intent has contributed to the accessibility
of the music on the Internet.
(61) I first deal with the claim from TONO18
and NCB.19 The provision in §54 first para. letter
a covers amongst others violation of the
protection of the copyright pursuant to §2.
(62) The intermediate court held that the
uploaders’ illegal acts were completed when the
music was uploaded and that there thereby was
no basis for liability for contribution. I do not
agree. The criminal provision targets “to violate
17
Translator: Homage Volume to
18
Translator: The Norwegian organization for
collecting copyright fees for music and distributing it
to the respective copyright owners.
19
Translator: Norwegian Copyright Bureau.
Direct connect-oslo_ENG – page 9
provisions that protects copyright”,20 and here the
uploader’s violation consists of making the music
accessible. It cannot be derived from the wording
that the violation ceases when the uploading is
finished in the technical sense, and to me such an
understanding is very unnatural. In my opinion
the violation of copyright continues as long as the
uploader lets the music stay on the Internet. I add
that it would be strange if the [statute of]
limitation for such a violation should begin to run
from the time the uploading is finished.
(63) A has alleged that if the linking cannot
be regarded as accessibility, then there should not
be any basis for liability for aiding. I do not agree
with this argumentation. It is not a requirement in
criminal law that the aiding act in itself has to be
illegal. The linking has increased the effect of the
uploader’s acts by increasing the accessibility to
the music. A himself has explained that the users
generally could not find the music files without
the links.
(64) It is of no importance to the issue of
aiding whether the uploaders had knowledge of
A’s operation, see Johs. Andenæs, Alminnelig
strafferett21 (5 ed., 2004) page 327.
(65) Whether the linking should be regarded
as aiding requiring a remedy of damages must
depend on an evaluation of the specific facts.
There must be drawn a limit from a general
“unlawful” reservation. I refer to Andenæs page
154 and mention briefly that he states that the
term unlawful often can be translated to include
“improper”, “unwarrantably”, “blameworthy” or
similar characterizations.
(66) The principal and the aider shall be
judged on basis of their own conditions. This was
held already in Rt-1908-790. I refer to Andenæs
page 338. I can also refer to Erling Johannes
Husabø, Straffeansvarets periferi22 (1999)
especially page 255. He notes that “aiders can be
prosecuted in Norway both in the case where the
aiding act is “done” in the country (§12 first part
of the Penal Code) and were “the result has
happened in or is aimed” at this county ((§12 last
part)”. Thus, it is of no importance if the
uploaders could be punished pursuant to the law
of the country in which they were residing -
something that is not stated in the record.
(67) In my opinion, A’s acts are to be
regarded as aiding that is both intentional and
extremely blameworthy. His aim with napster.no
20
“å overtre bestemmelser gitt til vern for
opphavsretten”.
21
Translator: General Criminal Law, a treatise by a
famous Norwegian Law Professor.
22
Translator: The Periphery of the Liability to
Punishment.
 Unofficial Translation of the “Direct connect-Oslo” case
was exactly to give others access to the music.
The homepage of the webpage shows this. The
introduction stated:
“Welcome to napster.no
You are at Norway’s largest and best
website for free music. Here you can download
as much music you want.”
(68) There was uploaded popular music by
well-known artists. Amongst others, links were
made to music that was on hit lists like Norway
Top 20 and the VG-list. A has without doubt
known the music was uploaded without consent
from the copyright owners. He has acted with
intent and cannot be found to have been mistaken
of the law and that he was making criminal acts.
(69) Thus, A must be liable for the damage
TONO has suffered, first and foremost because
some of the users, that otherwise would have
bought CDs, got the music though downloading.
Causality between his acts and TONO’s loss
exists without doubt. I add that liability for
damages in this case is in no way inconsistent
with freedom of speech or expression.
(70) I do not find reason to deal with the
issue that A should not be liable towards NCB.
Damages in connection with infringement of
copyright is measured by one figure. It is then up
to TONO and NCB to divide the total between
themselves, as they arranged.
(71) Finally I note, that is clear and
indisputable that as for TONO and NCB there
exists no problem in relation to copyright
protection on the international plan. Through
precept to the Copyright Act of 21 December
2001 no. 1563, the foreign country rule, in
pursuance of §59 of the Act, foreign works are
protected as if they were Norwegian.
(72) With regard to creative artists and
producers, they are protected in Chapter 5 of the
Copyright Act, especially §42 and §45, which
does not give a monopoly for public presentation
of recordings. In the amendment to the Copyright
Act of 23 December 1988 no. 101 was as §54
first para. letter d established a criminal – and
thus also damages – protection for creative artists
and other property owners pursuant to chapter 5
of the Act, through a ban against making
available to the public the works and recordings
mentioned amongst others in §42 and §45, when
the copies are produced in violation of these
provisions.
(73) It follows, as I have previously
mentioned, that the uploaders of music have
made it available to the public, and that A must
be regarded as having aided this. However, the
question arises whether all the creative artists and
Direct connect-oslo_ENG – page 10
producers involved in the case, belong to the
group of property owners that the Act protects.
(74) As §54 first para. letter d is related to
the illegally produced copies, this must be
interpreted as such copies which can be
proscribed by the Copyright Act. Thus, it must be
a requirement for liability for punishment – and
liability for damages – that the Copyright Act
gives the property owners protection against the
production of copies which was done by the
uploaders. A geographical limitation of property
owners covered by chapter 5 of the Act applies
pursuant to §58 and the foreign country rule.
Prescript §6-1 first para. provides that the Act
shall apply similarly to creations and works
embraced by chapter 5 of the Act for persons that
are citizens of or domiciled in a country inside
the European Union, and for a corporation with
office inside E.U.
(75) A has not denied that if he is regarded
as liable for damages to TONO, he will also be
liable to artists and record-producers embraced
by §58 of the Copyright Act or the foreign
country rule. As for artists that do not have
citizenship in or are domiciled in the E.U. and as
for producers outside the E.U. he asserts these are
not covered by the protection.
(76) I do not agree as for the record-
producers. §58 second para., third sentence
states:
“The provision in §45 concerning the
right to make copies shall apply for the
benefit of all sound and film fixations.”
(77) When the question is the producers
protection against production of copies pursuant
to §45, there exists no geographical limitation as
to who is covered. Thus, the uploaders’ produc-
tion of copies is covered by the Copyright Act,
and A has aided the uploaders to make available
copies that were produced in violation of §45.
(78) The provision in §58 second para., third
sentence does not cover artists. This must mean
that chapter 5 of the Act only protects them
against recording of their presentations to the
extent provided by other parts of §58 or by the
foreign country rule. The provisions of chapter 5
of the Act which the property owners embrace
also limit the scope of §42. Since §54 first para.
letter d covers publication of recordings as
mentioned in §42, I cannot see other than this
only covers those artists that are protected by
chapter 5. As §45 does not cover artists, I can not
see that they can plead that the recordings are
violating this provision.
(79) I have reached the opinion that A’s
liability for damages to the artists must be limited
to those artists that are embraced by §58 or by the
 Unofficial Translation of the “Direct connect-Oslo” case
foreign country rule. It has been asserted by the
record companies that even if such a limitation
has to be made, this gives no reason to reduce the
total amount of damages decided by the trial
court as the exclusion must be regarded as
moderate as reasoned by the trial court. I agree.
In the present case one of the acts for
which [A] is charged is that he ran three
hubs on which the file sharing was done.
What happens is that a request to search the
file-list goes through the hub, while the oth-
er contacts between the users are done dir-
ectly between the users, not through the hub.
When this happens there is nothing in
the hub that shows what is happening
between the users.
Defendant has explained that during a
period of his life he used the Internet as a
refuge from the daily life. It was here that he
meet those whom he refers to as “his friends
on the Net”. He regards many of those he
meet there as his friends, even though for
most he has never met them other than on
the net. Amongst others, he met his fiancée
on the net.
Defendant belongs to a group on the
Internet Relay Chat (IRC) that discusses
Jazz, among other topics. However, defen-
dant found the IRC-service had too many
conflicts and looked for other services that
were more protected against attacks. During
this process he considered starting up an
FTP-server to exchange files, but he ended
up using the software “Direct Connect”
(hereinafter “DC”). The reason he choose
the latter was that both file sharing and chat-
service were integrated in the same service.
He tried to get his friends to follow and
join him in using this service and established
for this purpose a hub, “Jazz-house”.
Defendant described it as a “test hub” with
approximately 50 registered users, of which
30-35 were active. It was a closed hub, that
is, one had to be registered as a member
with a username and password before using
the network. Jazz-house was working from
July through December 2003. The hub was
placed on a server at Netcom that was
owned by an employee there. Later [A] had
a server built, which was placed at a data-
room at Netcom. The choice of place was
made with the purpose, amongst others of
using Netcom’s high-speed connections for
Direct connect-oslo_ENG – page 11
testing software defendant has designed
himself.
Thereafter, [A] got a request from his
fiancée [B] and from a friend [C] to place a
hub on his server at Netcom since they
themselves had difficulties with their
machines. Defendant has explained that he
regarded these persons as his friends and
that he wished to do them a friendly turn. He
received the hubs in the form of a file in so-
called zip-format which contains an archive
of files in compressed form. The zip-file was
placed on the machine at Netcom, un-zipped
and the hub was activated. The files were
received in full working order, wherefore
defendant did not have to do anything more
that just start the hubs, which immediately
began working.
Furthermore, the defendant has testified
that he was only a guard with the task to see
to it that the hubs were working. He
received from other people a large amount
of technical questions that he tried to solve.
During the trial, the court was presented
with “config”-logs and some logs from
conversations defendant had through the
Internet. The latter consists of only a part of
approximately 25,000 A4-pages that had
been printed. The court has taken notice of
the defendant attorney’s objection, but finds
that the documentation to a large degree is
representative of the full content of the
logs.…
The court finds by the given evidence
that in general, the material placed on defen-
dant’s computer is material which is
protected by the Copyright Act. In general,
the material is newer than the 50 year
duration in the Act and is covered by the
§58 of the Copyright Act or the foreign
country rule, as the Supreme Court outlined
it in the “napster.no”,23 see above. On the
basis of this evidence the court holds that
there no consent was given by the copyright
owners to the use of vast majority of the
files.
Claim I a: During the trial defendant
explained that he initially operated a so-
called “0-slotpolicy”, that is, he did not
23
Translator: case.
 Unofficial Translation of the “Direct connect-Oslo” case
allow persons to download from his own
computer. Along the way, this was
moderated in such a way that defendant
admits he, expressly to whom he regarded as
his “friends”, allowed downloading.
Here, pursuant to case law, see the
“napster.no-case, copying and publishing
have been done. What differentiates that
case and the present is that in the first case
links were placed on the website, whereas in
the present case links were placed on the
defendant’s computer.
The court finds that the evidence shows
that defendant gave persons access to files
on his computer. The court does not find it
significant whether one makes links or gives
persons access to music files on his own
computer. Legally, both acts must be
regarded as “making available”, as long as
persons other than the defendant in fact are
given access to the music files. The court
finds that the evidence shows that defendant
has given access to a large amount of music
files from his computer, music he had not
been allowed to publish by the property
owners. Thus, he has objectively violated
the rules in the Copyright Act.
The court has to determine whether such
conditions are present that require a sentence
to be imposed on the defendant. The court
first deals with the question of excusable
mistake of law. The court finds that there
must be found specific circumstances before
the court can acquit defendant. The
commentary to the Penal Code gives as
examples of conditions that can imply
acquittal, that a law-paragraph is new and
makes changes to the previous law, that the
text of the law is ambiguous or uncertain,
that one has relied on statements from the
authorities etc. The court finds that defen-
dant was not mistaken regarding the law
concerning the issue of sharing music files
and movie files. Indeed, although defendant
has at certain times declared in the
conversation-logs that “file sharing is legal
in Norway”, certain other aspects show that
defendant was aware of the law. The court
finds that the so-called “DVD-case”24 had
24
Translator: the criminal DVD-Jon cases in Norway,
translations of decisions at
<www.geocities.com/hssph/DVDjon1.pdf> and
Direct connect-oslo_ENG – page 12
been in the courts shortly before defendant
began his hubs and that in connection with
that case there were newspaper articles on
copyright, intellectual property etc. More
than anything, the court points out that
defendant clearly was afraid of American
record producers who searched for illegal
file sharing, and that his DNS-address and
IP-address were changed several times when
he thought the authorities had infiltrated
them. Furthermore, there are examples of
statements like “nobody cares about a small
jazzhub”, something that indicated that those
involved were clearly aware of the illegality
of the acts.
On basis of the above, the court holds
that not only did the defendant know that
file sharing of the material was illegal, but
that he deliberately shared music which he
had saved on his computer with others.
The next question is whether defendant,
because of the exceptions in §12 of the
Copyright Act, has acted legally. It is legal
to copy files for “private use”, including
family, friends etc. There exists a fair
amount of case law and discussions as to
what is embraced by the definition of
“private use” and what is not. In the present
case – on which subject the court will deal
further with later on - defendant is charged
with running three different hubs with
different user terms. Defendant was a user of
these hubs and used them in a smaller or
larger extent to communicate with others.
As for Jazzhouse, this was a small closed
hub with circa 30-35 active users.
Jazzgroove was open with several hundred
users, whereas Lushlife was closed, but with
a significant number of users which
defendant had actively recruited.
A subject the court has to determine is
how legally to deal with the persons one
meets in Cyberspace, but who one only after
or long period – or never – meets face to
face. It is possible that the way to meet
people has changed after the invention of the
<www.geocities.com/hssph/DVDjon2.pdf>, see also
the civil case DVD Copy Control Association v.
Andrew Brunner, Jon Lech Johansen, Masters of
Reversed Engineering (MoRE), et. al., 10 Cal.Rptr.3d
185, 116 Cal.App.4th 241 (Cal.Ct.App.6.Dist.,
February 27, 2004).
 Unofficial Translation of the “Direct connect-Oslo” case
computer and the Internet. The question the
court has to ask is whether the fact that one
has not met another person face to face gives
reason to state that a friendship does not
exist.
The court finds it hard to accept such an
argument. The court has to follow the
development of the society and to recognize
the fact that new ways of getting together
have arisen. The court finds that it is
possible to describe a person as a friend
even though one has only communicated
with that person via the Internet, just as well
as a person one had only talked with on the
phone. This does not mean that the issue of
frequency between the contacts are
irrelevant, but only that contacts through the
Internet do not exclude the possibility of
establishing a friendship.
Defendant has mostly characterized the
people he had contact with on the hubs as
his friends and family. This is especially the
case for Jazzhouse, which had a limited
number of persons. However, the court finds
it unnecessary to discuss how large the
group can be as the court finds it proven that
– with few exceptions - there do not exist
the kind of personal ties which are required
for concluding that immunity applies. There
exist printouts of communication logs which
show that defendant has allowed file sharing
with persons he clearly never previously had
had communication with. The court finds
this weakens defendant’s own evidentiary
statements on this issue. Thus, the court
holds it is proven that defendant has shared
his music files with others, files he knew he
did not have property rights to, and with
persons that cannot be regarded as embraced
by §12 of the Copyright Act. He shall be
convicted for Claim # Ia.
Claim # II a, III a, IV and V: During the
trial there was proposed a thesis pursuant to
which downloading becomes illegal if one
after having downloaded protected files for
private use thereafter places these files on
the Net. For its consideration, the court must
bear in mind that downloading for private
use is legal and that there until now has been
no requirement of a legal “foundation for
copying”. This implies that until now one
Direct connect-oslo_ENG – page 13
could without punishment download files
which illegally were made available on the
Net.
The question is, whether defendant by
his acts has produced his own copies “in
violation of the rules” and thereafter made
them available for the public. The court
finds that the defendant’s acts cannot be
evaluated in a vacuum, an issue the court
will discuss in connection with the question
of contribution or aiding. The fact that
defendant has a large amount of music files
on his computer does not in itself prove that
he was planning to making the files avail-
able on the Net. However the court holds, in
light of defendant’s testimony regarding his
desire to maintain an environment for people
interested in jazz, his activities, the large
amount of files that was available, and the
file sharing the court has found already
proven, see above under # Ia, that it has
been proven, as to the large amount of the
files this case is about, that defendant both
had the intent of using the files for private
use and the intent of sharing them with
others. The later is illegal and thus, the
copies were produced in violation of the
Copyright Act.
The court finds that the evidence shows
that defendant has acted as described in the
claim. By his acts he has infringed the
protected rights to the work that the
producer and the performing artist have as to
both copying and publishing. He has acted
with knowledge of his lack of authority and
with knowledge of the illegality. He shall be
convicted for this.
There is an occurrence of different
aspects of the same violation which are
covered by several statutes. Thus, “ideal-
concurrence” and the criminal statues can be
used together.
Claim # I b, c, d, II b, c, d, III b, c, d:
The next question the court will deal with is
the issue of defendant’s contribution to or
aiding of illegal file sharing. The question is
partly dealt with by the Supreme Court in
“napster.no”, #77, but as the facts are
different in the present case, it is necessary
to examine the issue more closely. Initially,
the court points out the difference, namely
 Unofficial Translation of the “Direct connect-Oslo” case
that in the present case the hub had only a
“contact-creating” function. The exchange
of file-lists and the transmission of the files
themselves took place directly between the
users, not via the hub.
The court must look at the general
requirements for contribution or aiding, and
next look at the special requirements for
contributory or aiding in this case. It is
without doubt that the case at hand is in the
gray border-zone of whether contribution or
aiding is present or not. It is necessary to
look at branches of jurisprudence other than
that at issue in this case, amongst others,
since there is no case law similar to this
case.
In this case there is no issue of physical,
but rather psychical contribution or aiding.
On this subject it is stated in Andenæs:
Alminnelig strafferett (5 ed.) page 327:
A psychical contribution or aiding can
consist of “tilskyldelse” [“incitement”] or good
advice. Evidence on whether the principal
criminal would not have done the act without
aiding is not required, it is sufficient that the
intent is fortified or that the good advice has
influenced the planning or the execution.
There is made reference to25 Rt-1926-
581, where a man in the trial court was
convicted for aiding sales of liquor. He had
seen his wife selling liquor from their
apartment without his having intervened.
His conviction was revoked by the Supreme
Court because an passive act not could be
regarded as criminal aiding even though one
thereby could consent to the act.
There is made further reference to Rt-
2003-902 where the Supreme Court held
that a man, which had rented a part of his
office for the storage of furniture and
movables, could not be convicted for aiding
illicit distilling even though he did not
prevent future production.
The court refers to Rt-2000-1455 which
dealt with illegal motor-traffic in wilderness
areas. The defendants were offered a free
ride in the wilderness without it being
planned. They rode into a national park and
were spotted by the authorities. The court
25
Translator: case reporter at.
Direct connect-oslo_ENG – page 14
rejected a ticket-fine and the first voting
judge observed:
From a pure linguistic understanding of §3 it
can be said that the defendants, by letting
themselves and their tour-equipment be
transported in this way, made a “use” of the snow
scooters. They had benefit of the snow scooters
as means of transportation. However, I have
come to the conclusion that this cannot be the
basis. A fortuitous, tollfree, and passive and
accidental conveyance without any connection to
the driving itself – as is the case here – is not a
criminal act.
From this decision it follows that ran-
dom incidents are excluded from the branch
of jurisprudence on contribution or aiding. If
one wishes to look for incidents where
aiding has been condemned, the court points
to Rt-1995-1228 (the Andrawes case):
The majority of the intermediate court has
determined that A “had not influenced the further
sequence of events until C shot the air pilot”. The
prosecution argues that aiding in §233 of the
Penal Code does not require any causality
between the act of the accessory and the main
criminal. There has been made reference to Johs
Andenæs: Alminnelig strafferett, 3rd edition page
290 that states that “criminal aiding does not
require that the contribution has been necessary
to reach the result”. We refer further to the
decisions that are quoted, especially Rt-1948-13
and Rt-1948-175 which had similar facts to the
present case. Even though A stated that she did
not want the air pilot killed, she continued
contributing in the capture. Andenæs says at page
290: “Anybody, who contributed to such a joint
action, shares the responsibility for the results as
far as these are coved by the intent.”
The majority of the intermediate court has
also discussed whether A had a duty to intervene
against the principal criminal. There is made
reference to Andenæs page 291 which states that
even if a person has a special duty to prevent the
crime, passivity in general cannot be punished.
Pursuant to the description of the majority of the
intermediate court, the prosecutor argues that A’s
behaviour cannot be characterized as pure
passivity. The majority holds that she “resumed
her role as capturer” – armed with hand-grenade
she continued to hold the passengers and cabin
crew in check. Thus, her role was in no way
passive.
Therefore, the prosecution claims that the
description of the intermediate court is to be
considered objectively as criminal aiding. Thus,
the criminal court has misintrepretated §233 of
the Penal Code on this issue.
 Unofficial Translation of the “Direct connect-Oslo” case
Furthermore the majority holds that even if
A had argued against the killing of the pilot, she
still was aware of the possibility that he might be
killed, and she continued nevertheless aiding the
action. The prosecution finds that this is
sufficient to establish intent, since this
description is embraced by the so-called positive
consent of the intent-concept. Reference is made
to Andenæs page 277 and Rt-1980-979.
Pursuant to the description of the majority,
this in the opinion of the prosecutor fulfills both
the objective and the subjective requirements for
criminal liability under §233 of the Penal Code.
Since the intermediate court nonetheless finds
that she cannot be held liable for this, the court
must have misintrepretated §233 on both the
objective and the subjective aspect.
As mentioned, the majority took as its basis
that A’s act “did not influence the further
sequence of events until C shot the pilot.” It
should be remarked that the majority did not
consider further whether there was “good reason”
to suspect the opposite. Because the majority
found this to be the determinative issue, they
ought to have discussed this essential point
thoroughly. Thus, alternatively it is claimed that
the courts reasoning is inadequate on this issue.
The prosecution has asked the court to
decide that:
“The decision of the intermediate court is
rescinded”.
A has in its brief on appeal especially
pointed out:
Even if causality is not a requirement for
aiding, at least there is required what Andenæs
describes as a “contributory causal relation”. It
seems to be this requirement that the intermediate
court cannot find. There is also made reference to
Henry J Mæland’s commentary to the Penal Code
that states the “aiding must have had some
function to the crime.” Further there is made
reference to Erling Johannes Husabø: Rett til
sjølvvalt livsavslutning26 (1993) where the
aiding-concept in §233 is thoroughly discussed.
As for the reference to Andenæs’s statement
on “joint actions” it should be noted that the
“joint action” in the present case not was the
killing of the pilot but the capture of the airplane.
The majority made it clear that the killing was an
“independent act, distinct from the capture of the
plane.”
It is asserted that the majority’s reasons are
not imperfect since it was determined that A did
not influence the sequence of events. There does
not seem to be any reason to suspect this finding
as there has to be found an overwhelming
likelihood that the suspicion is justified.
26
Translator: The right to self-elected end of one’s
life.
Direct connect-oslo_ENG – page 15
The majority of the intermediate court has
found that A did not strengthen the intent of the
principal or in any other way contributed.
The prosecution’s attack on this issue must
refer to the assessment of the evidence rather than
to the interpretation of the law.
Also as for the question of whether A had a
duty to prevent the principal from the killing, is it
claimed that the prosecution is attacking the
intermediate court’s assessment of the evidence.
It is an assessment of the evidence of the actual
facts in the cabin of the airplane that the majority
used for determining that A did not have a special
duty to do more than she did toward the principal.
The grounds relied on by the majority of the
intermediate court seem sufficient. In the reply it
is more closely explained why it seemed
impossible for A to intervene against the
principal.
As for the question of guilt pursuant to §233
of the Penal Code, the majority of the
intermediate court held that A had not shown an
intent to kill, and there is no reason to presume
the court has misunderstood the concept of intent
in the code.
A asserts that:
“the appeal should be dismissed.”
The Supreme Court points out:
As remarked above, this is the third time the
Court has dealt with this case, and the second
time the Court considers it in connection to the
question of whether A with good reason can
come under suspicion of aiding the killing of the
air pilot B.
During the consideration the Court, as
previously, is bound by the restriction of
competence provided by §388 of the Criminal
Procedure Code.
An essential issue in the case is whether the
killing can be regarded as connected to the
capture of the airplane. In this respect, the Court
makes reference to the German arrest-decision of
August 18 1994 where it is pointed out the killing
“was done to frighten the passengers and the
crew and to emphasize the demands of the
captors.” Reference should also be made to other
grounds made in the arrest-decision on the
background for the hijacking and on the several
incidents of threats to kill all the passengers and
crew members if the demands of the hijackers
were not honored. These demands included the
release of nine German terrorists and payment of
15 million dollars in ransom. To force the
airplane to start again after a long stay in Bahrain
before it flew to Aden, where the killing took
place, there had been made a specific threat of
killing the pilot and some of the passengers.
In light of this background it is surprising
that the majority of the intermediate court states:
 Unofficial Translation of the “Direct connect-Oslo” case
“Even though the killing happened
while the plane was captured, the majority
regards the killing as an independent act,
distinct from the capture.
The act of the killing appears neither to
be necessary or rational to preserve the
capture or to achieve the capturers’ goal. C
was alone in both deciding the killing of the
pilot and the homicide.”
The statement has both legal and evidentiary
implications.
As for the aiding-responsibility in §233 of
the Penal Code, it is the opinion of the Court that
those who participate in a hijacking – or at least
such a capture as the present – have an aiding
responsibility for the killings that occur during
the capture unless special circumstances show
otherwise. The Court makes reference to the
decisions cited by Andenæs: Alminnelig
strafferett page 290 at the bottom about the
criminal responsibility for aiding illegal
executions and other actions with the result of
homicide during the Second World War. The
single participant cannot escape from his
responsibility by subordinating himself to a
leader, who has the absolute command authority.
If one uses this decision as basis, the
defendant can be convicted for aiding since
he has been a part of a joint action with the
purpose of sharing files with others without
paying the property owners.
The court also refers to Rt-2002-1717
(the Orderud case) that notes:
As for the further discussion I remark that
the intermediate court on the issue of the fixing
of the punishment (amongst others) explains the
following about the planning of a killing on farm
X the night before Christmas Eve 1988:
“B initiated the killings. In Fall 1998 he
asked A and D whether they could provide
weapons. He also gave 20,000 crowns to D
so he could purchase the weapons on the
illegal market. This money, or a part of it, D
gave to A, who then bought two pistols in
Molde. After the party on the night before
Christmas Eve the weapons were brought
into the living room on farm X. D showed
how to load the weapons, and explained how
they should be used. B, C and D were
wearing disposable gloves during the
demonstration of the weapons. During this
they began to discuss how to kill B’s parents
and sister and the sister’s husband. It was
suggested that a burglary should be
simulated by using a glass-hammer when
entering the door to the porch so the least
damage was done. Because B and C were
doubtful of whether B’s parents had
Direct connect-oslo_ENG – page 16
installed a burglar alarm, they discussed
whether to cut the electricity. B explained
where the fuse box was place in the
residence. C drew a plan of the residence,
including the location of the bedrooms of
the parents and of the sister and the sisters’
husband. On the plan was also marked the
fuse box. During the discussion of how to do
the killings, it was remarked that they had to
kill the most agile persons first and that one
could use a disposable dress and disposable
socks to prevent making trails. A pointed out
that one could not kill people because of a
fight over a farm. B replied that she
understood the seriousness of the situation,
while C stated it was a question of life or
death.”
First, I look at whether the grounds for the
decision of the intermediate court on the issue of
the fixing of the sentence for A gives any basis to
assume the intermediate court used the law
incorrectly. The intermediate court notes:
“A clearly had a more limited role than
the married couple. She traveled to Molde
with money that she knew B had provided
so D could buy weapons on the illegal
market. After having bought two pistols, she
went to farm X determined to hand over the
pistols to B and C.
To some extent it is uncertain whether
A had any intent to kill before she arrived at
farm X on the night before Christmas Eve.
But she knew that the married couple looked
to buy illegal weapons, and that they had
asked her whether she could get hold of a
“torpedo”. The intermediate court holds she
at least from this moment regarded it as
possible that the pistols might be used to kill
somebody. Despite this she brought the
weapons, which she hid in the barn, and
brought them into the living room after the
other guests had left the Christmas party.
Because of this involvement she had a clear
duty to prevent the pistols from being used
for the killings.
After she had brought the pistols into
the living room, she witnessed a planning in
details of the killing of B’s parents and sister
and the sister’s husband. The intermediate
court holds she from then on regarded there
was every probability that the planning was
seriously meant and that they would carry
through with use of the pistols she had
handed over. Since she with this kind of
knowledge, and after deliberation, did not
make any efforts to remove the pistols or in
any other way prevent their being used, she
has by her omission become guilty of aiding
an intentional homicide.”
While the opinion of the prosecution was
that A already from a earlier time had been active
 Unofficial Translation of the “Direct connect-Oslo” case
in the planning of the killings, the intermediate
court does not consider this; but holds that it is
somewhat uncertain whether intent existed at a
time before she arrived at farm X the night before
Christmas Eve 1998. Firstly, I find without doubt
that if the intent existed at the time she handed
over the pistols then the crime is compassed by
§233 of the Penal Code. In that case to be exempt
from punishment she would have to prevent the
corollary, see §50 of the Penal Code.
However, the basis of the fixing of the
sentence of the intermediate court is based on the
assumption that even if the intent was not present
at the mentioned time, A nonetheless had a duty
to act when she shortly thereafter – having heard
of the planning of the killing – had to know that
there was every probability that the planning was
seriously meant. When she after consideration
did not fulfill this duty, she must be regarded as
guilty of aiding a willful murder. This implies
that the failure to recapture the pistols, or in any
other way to see to it the planned killings would
not take place, has to be regarded as punishable
under §233 of the Penal Code.
The provision in §233 first and second parts
on deliberate and willful murder does not
mention omission as a violation. However, even
though omission is not a starting point, and it is
not covered by the provision, it is not doubted
that in special circumstances there can exist a
duty to act and one can be punished pursuant to
§233 if one neglects such a duty. In legal theory
culpability has been stressed as a criterion for
punishing omissions, see amongst others
Andenæs: Straffbar unnlatelse27 (1942) page 282.
I also refer to page 288-289 where Andenæs says:
“One who has planned a crime often
uses help from naïve people that provide
him information and tools,… Naturally, the
helper is accountable if he continues his aid
after he realizes the real truth of the matter.
However it is doubtful whether a special
duty to intervene can be imposed on the
aiding person. Still, one can have
participated in such a substantial way during
the preparations and been involved in such a
way that it is natural to regard his passivity
as aiding.”
Husabø in Straffeansvarets periferi
emphasizes in an example at page 186 the
affiliation requirement – the requirement of a
special connection between the person that leaves
an act undone and the interest the crime-
provisions pursue.
No matter which of these approaches one
chooses, I agree with the opinion or use of the
law by the intermediate court – on the basis of the
facts the court used while fixing the sentence, A
had a duty to act. She had bought the pistols
illegally, was asked whether she could provide a
27
Translator: Punishable Omission
Direct connect-oslo_ENG – page 17
torpedo, and when she handed over the pistols,
she calculated that murder was at least a realistic
possibility. Furthermore, the space of time was
very short until she realized there was every
probability that the killings would be carried out.
Nevertheless she did nothing to prevent the
danger that her participation had created. A plain
and obvious possibility was pure and simple to
recapture the pistols, but other acts could had
been done to prevent the murders, for example
she could had notified the police or the person to
be killed.
Thus, I see no error in the opinion or in the
use of the law as stated in the decision of the
court. Thus, the essential question is whether the
instruction to the jury of the intermediate court
implies that the court in its decision used the law
wrongfully. As I have mentioned, the instruction
to the jury was not entered into the record of the
court, but was tape-recorded, and a transcript
hereof was presented to the Supreme Court.
From the instruction to the jury the defense
attorney has pointed at:
“Similarly for A.
If she overheard the planning of the
murders on the night before Christmas Eve,
and she can be blamed for not realizing the
seriousness [of the plan] and that it was real
as the pistols were placed on the table at
farm X, she had to take them home with her
She like F had at that time a duty to
prevent her contribution – the risk of harm
caused by her involvement.”
It is especially the wording “can be blamed
for not realizing the seriousness [of the plan] and
that it was real” that the defense attorney attacks
and holds wrongfully implies a guilt requirement
– namely that A’s negligence would be sufficient
to answer yes on the primary questions which
dealt with aiding to willful murder. I agree the
word “reproach” naturally has been thought to
apply not only to intentional but also to negligent
acts. Detached these sentences in the instruction
to the jury can give the impression that too small
a requirement has been called for of the jury by
the intermediate court.
However, the picture becomes different
when one puts the statements into their full
perspective. I call to mind that is was a big and
complicated task to give instructions to the jury
in this case. There were four persons indicted,
between these were different kinds of aiding acts
to be considered, and there were big differences
between the prosecutors and the defendants’
attorneys’ opinions of the law and the sequence
of the events.
The instruction to the jury was very
thoroughly and detailed – the transcript is over 22
pages. The outline is very logical and stringent,
with distinct explanation of amongst others the
definitions and requirements of intent, willful and
aiding. The presiding judge of the intermediate
 Unofficial Translation of the “Direct connect-Oslo” case
court made clear that the principal question for
the court is willful murder, he explained
exhaustively and correctly what intent means and
embraces, what the requirements are, and at what
time intent must exist. I point out especially that
the presiding judge made clear that negligence is
not sufficient, and stated in part:
“Thus, the principal question in the
present case is one of willful murder.
… well-known acquaintances to drive from a place
At a lower degree of likelihood than
that there is every probability that
(something will happen) the situation is
regarded as a negligent killing28 - §239 of
the Penal Code.
Negligence is not sufficient to answer
yes to the principal question in the present
case.
Intent is required.
In the questions put forward to you29
there is no question on negligent killing.
As attorney Kjensli discussed in his
pleading (final statements) D was in the trial
court convicted for negligent killing.
Here in the intermediate court that
problem or issue only has to be dealt with if
the principal question on intentional murder
is answered no.
In that case you30 will be issued a new
instruction on negligent killing.”
The formulations that the defense attorney
attacks occurred in the presiding judge’s
instruction about the guilt requirement, but a
section further in the instructions, he deals with
the requirements for withdrawal from completed
attempt – first as for B, then C and last as for A.
As I have pointed out, it was the opinion of the
prosecution that A from a very early time was
active in the planning of the killings, and the
instruction to the jury had to take into
consideration that the bench members of the
intermediate court agreed to this. The basis of the
presiding judge’s instruction on withdrawal from
attempt had to be that A had sufficient intent at a
previous time. It can fairly be stated that it is hard
to discover what the presiding judge meant with
the wording “and she can be blamed for not
realizing the seriousness [of the plan].”
Nevertheless I do not find this can have confused
or mislead the intermediate court as for the
required degree of guilt before the principal
question on willful murder could be answered
yes. I remark that A’s defender at the end of the
instructions to the jury – that is just before the
jury went into deliberation – asked for a
clarification of exactly these formulations. This
only caused the presiding judge to repeat what he
28
Translator: (manslaughter).
29
Translator: (the jury).
30
Translator: (the jury).
Direct connect-oslo_ENG – page 18
has stated earlier, and what happened has no
influence on my conclusion.
At the citation from Andenæs: Staffbar
unnlatelse in the Orderud-case, the book
does have an example of responsibility that
can arise by passivity:
“A truck driver Olsen was hired by two
near Moss and pick up some goods the two
persons had left at that place. The car was parked
in the woods and all three stepped out of the car
and continued by foot circa 100 meters past a
building where the two had planned a burglary.
They stood some time at a barn, then went back
to the building, and while the driver watched, one
began to remove the kit of a window frame so he
could break in. No word was exchanged. During
the work for removing the window they were
discovered by some of the owners’ employees.
The driver was convicted for aiding an attempt of
burglary. The court held it had been proven that
he had had a strong suspicion that something was
wrong when they parked the car in the wood, and
that he was fully aware of the issue when they
stood at the barn at the other side of the building.
Had he backed out by refusing to allow his car to
be used to transport stolen goods, there would
have been no burglary. On the contrary, he
without objection followed the two others and
stayed there as an onlooker. That he had neither
actively participated in the burglary itself or
positively encouraged it, could under the specific
circumstances not exempt him from being an
accessory.
On the question of intent, the court will
refer to Andenæs, Alminnelig strafferett (5th
ed.) page 233:
Intent is present also in case of an unwanted
result if the offender has calculated it as certain
or there is every probability of it. One who sets
his house on fire to get the insurance is an
intentional killer if he presumed it as certain or
there was every probability that the tenant would
be burnt to death. That he regrets people could be
involved does not exempt him from full
responsibility when he nevertheless acted while
aware this might be a possible result. In a similar
way there exists intent as to the consequences of
an act that the offender calculated as certain or
that there was every probability of.[...] It is of
course not the objective degree of likelihood that
has to provide the basis, but the likelihood that
the offender calculates.
These sentences have been confirmed by
case law. What is doubtful is how high a degree
of likelihood is required.[…] Probably the best
way to express the present state of the law is that
likelihood-intent exists when the offender has
 Unofficial Translation of the “Direct connect-Oslo” case
regarded it as more probablee that the criminal
result would occur than the opposite.
As for intent, the court especially refers
to two decisions: The first is published in
Rt-1990-600 and points out:
Intent exists in different forms, see amongst
others the explanation given in Rt-1980-979 on
when a punishable consequence can be regarded
as willfully done. The most obvious instances are
where there exists an intention, or where the
offender has regarded the criminal result as
certain or there is every probability of it. Intent is
also found in circumstances where the offender
has regarded such a result as a possibility, the so-
called dolus eventualis. The above-mentioned
decision Rt-1980-979 was based on the
presumption that intent exists when the offender
has decided to act even though the result will be
fulfillment of the consequences described in the
criminal provision. This is the essence of the so-
called positive consent-theory.
What applies for intent as for consequences,
also applies for other elements of a criminal
provision.
When the positive consent-theory is used in
practice, questions of proof will often occur.
What thoughts the offender had and what
decisions has he made cannot be directly
observed, thus, often the decision must be made
from conclusions based on the circumstances of
is referring to both defendants.
the act. Thus, the offender through his behavior
can have shown that he had decided to commit
the crime even though intent is an element of the
crime. Such a determination can be regarded as
having been made, even though the determination
has not been fully clear in the mind of the
offender. If the court finds that the accused has
made such a decision, the court has to find that
intent exists.
In Rt-1980-979 is stated:
Intent in relation to the result of the harm
exists in different forms. The result of harm can
have been intended as the object. The offender
can have been regarded it as certain or that there
was every probability of it. And the offender can
have regarded it as more or less possible. In the
latter position a demarcation is necessary.
Amongst those formula developed by theory,
exists dolus eventualis pursuant to the so-called
positive consent-theory. In brevity the idea
behind this latter formula is that intent exists
when the offender has decided to act even if the
result might happen. However, it is only on the
theoretical plane that such a formula exists as
pure jurisprudence. In practice it will be mixed
with the element of the burden of proof and the
requirement of degree of convincing-strength
depending on how near or remote the possibility
Direct connect-oslo_ENG – page 19
of the result of harm seems. It is also recognized
that it can be difficult to find a single formula that
can embrace the different instances that can occur
in practice. It is especially difficult to make a
sufficient demarcation to the degree of guilt that
does not reach intent, but must be regarded as
deliberate negligence or carelessness. It is
precisely here that the element of the burden of
proof is present.
From the instruction of the intermediate
court are recorded two sections. The first is:
“Each of the accused to be convicted
must have realized that he shot and that he
did so even though he realized it as an
possibility that the … affronted could be hit
and killed. If the accuseds shot to kill, that is
had intent to cause the affronted’s death, it is
clear the subjective requirements to convict
them for assault with intent to kill is present.
However, to convict it is not required that
the accused acted with murderous intent. It
is sufficient that they have taken into
consideration the possibility that the shoots
would kill, and that they “took this
possibility as a part of the bargain”.
The underlinings occur in the original
records of the court.
As the quotation shows, this statement
The statement is presumably based on what
is called the positive consent-theory. This theory
expresses that for conviction it is at least required
that the accused shot despite having considered
the possibility of a hit and a death, and had
accepted this possibility.
The other section that is recorded is this:
“You (the jury) has to find it proven
that A was aware when he fired that the shot
would hit one of the many persons that was
around him in the fist fight and that a hit
with every probability would mean death.
You have to examine the evidence and
measure the accused’s situation on the basis
of his knowledge at that time.”
The choice of wording shows that the
statement was especially pointed at defendant A.
I point out that he acted under different
circumstances than the other persons accused,
and this fact invariably must influence the
valuation of the evidence. I regard the statement
partly as a tightening up of the requirement of the
positive consent-theory, and partly a request to
the jury to be very careful when evaluating the
evidence.
Those sections, which are quoted, brought
along a request for clarification from attorney
Feydt as defender of A, of attorney Sellinger as
 Unofficial Translation of the “Direct connect-Oslo” case
defender of B, and of the District Attorney. This
resulted in the following recording:
“On the request for clarification from
attorney Freydts the presiding judge
remarked that at the time of firing it was not
required there was every probability that the
shot would be deadly.
On the request for clarification from
attorney Selinger the presiding judge
remarked that it is sufficient there is a real
possibility that the shot could hit and in that
case kill. But the accused had to be aware of
the possibility and taken the consequence as
part of the bargain.
On the request from the District
Attorney the presiding judge added as a
further clarification that the offender to be
convicted for knowingly attempting to
murder he must have taken the possible
death-result as part of the bargain.”
For me it is obvious that especially the last
clarification puts everything in order. I will not
comment on the two other clarifications. To me
they give elements for the total evaluation the
jury had to make, and that in any case they
cannot be to the disadvantage of the two
accused.
From the defense side it is noted that the
presiding judge has used the expression of taking
the result of the harm “as part of the bargain”
without making it clear what that meant. The
response is to say firstly, pursuant to the record
before the intermediate court, that the defending
attorneys did not especially request a clarification
of this expression. This must mean that they –
evaluated on the basis of the production of
evidence – did not find a need for it. Neither can I
see that the expression as used and with the given
clarifications could lead to misunderstandings.
The court now deals with the questions
related to the present case. The accused has
claimed that Jazzhouse was established with
the aim to keep an environment from IRC.
He has admitted he owned this hub. Lushlife
and Jazzgrove were operated by the accused
as a friendly turn on a server that he had
access to. He has himself described that he
himself was only a “guard” and that his task
was only to provide that the servers was
functioning. He used the hub as a chat-
channel to B, his fiancé. In addition, it has
been emphasized that one operating the hub
does not have any possibility to see which
files are shared between the logged-on users.
Thus, he had no possibility to control which
files were shared.
Direct connect-oslo_ENG – page 20
The defense attorney has emphasized
the latter and refers to American caselaw,
especially the Grokster case, which now is
on appeal before the US Supreme Court.
Grokster was acquitted by the Federal
District Court and the Court of Appeals. The
courts especially pointed out that the
software was not illegal, that use of file
sharing-applications is not illegal and that
one cannot control what is happening.
It is important to remember that file
sharing-applications are not in themselves
illegal, nor is file sharing as long as it
happens with material that is not protected,
or consent is given by the property owner, or
pursuant to the exceptions in §12. What the
American courts have considered is whether
the producers of the software, and the
service-supplier [ISP] are responsible for the
use of the software. This question so far has
been answered “no”. What we derive from
the decisions is that if the companies had
knowledge of illegal acts then they had a
duty to intervene and stop the illegal acts.
The court holds as previously mentioned
that one cannot treat the decisions referred
to and the accused’s acts in a vacuum. His
acts have to been regarded in relation to his
knowledge of the environment, his own use
of file sharing and his consent to this and the
fact that he actively recruited new users to
the hubs.
As for the accused, the court points out
that there exist facts other than those in the
decisions which are referred to above. There
is the fact that the criminal act took place
when the accused was aware of it. Further,
the facts are different than for others who
offer access to the Internet, for example
research environments, broadband providers
etc. In those situations the intention of the
file sharing is to share material that one has
the rights or consent to share. This was not
the case in the present case where the overall
purpose of the hubs was to share copyright-
protected material without the consent of the
property owner. The defendant has to have
been aware that file sharing in all likelihood
would be the result when he started up the
hubs. The accused’s admitted fear of
intrusion from American record producers,
his statements that “file sharing is legal in
 Unofficial Translation of the “Direct connect-Oslo” case
Norway” and “nobody cares about a small
jazz hub” leave no room for doubt that he
knew that the hubs would be used for illegal
file sharing, that he had considered it and
that he accepted it. Thus, he fits nicely into
what case law and theory regards as intent.
The defendant himself has explained
that he belonged to an environment where
the interest in jazz was the center. However,
when one looks at the kind of music
defendant had on his computer, the
conditions required of the users (at least x
GB for sharing), the conversations defendant
has had with others, defendant’s actions in
recruiting new users, his “helpdesk”-service
and so on, the accused’s explanations lose
their trustworthiness. It is obvious that
defendant has operated more than just as a
“guard”.
The court holds that it has been proven
beyond any doubt that the accused had a
very active part in the operation of the actual
hubs. It is the opinion of the court that his
high level of activity cannot alone be
attributed to his wish of having
correspondence with his fiancé and other
friends, but also has been based on a desire
to preserve the operation and achieve new
users. In the eyes of the court, the case at
hand fits what Andenæs describes: “It can
happen that his role has been such an
important part of the preparation and has
been entangled in the act to such a degree
that it is sensible to regard his passivity as
aiding.” The court finds it fully proven that
the accused was fully aware of what he was
doing and that he knew the file sharing
software was misused for sharing files that
were protected material. He wished the
result even though he knew it was illegal.
This has to be regarded as aiding pursuant to
the law. Thus, defendant objectively and
subjectively can be convicted.
The next question, however, is whether
there exists any other provisions that make
defendant’s acts exempt from punishment.
The first question is whether Norwegian
penalty law can be used for the claims in the
present case. As previously mentioned, the
file sharing takes place between the users,
not via the hubs. This can indicate that a
user in the U.S. downloads files from a user
Direct connect-oslo_ENG – page 21
in Italy. The provision in §12 of the penal
code must be compared with the provisions
in Chapter 8 of the Copyright Act and the
foreign country rule. In this connection is it
§12 first para. subsection c which has to be
used. Breach of copyright etc. is punishable
in most of nations in the world. The act,
aiding to breach the Copyright Act, has been
done in Norway and the act is therefore
punishable.
The next question is whether the
“ehandelsloven”31 §16 and the E.U. E-
Commerce Directive 2000/31/EF of 8 June
2000 has to be used. The provisions are as
follows:
§16. Exemption from punishment for certain
transmission and access services.
An information society service that
transmits information in a communications
network on behalf of a recipient of the service is
not criminally liable or liable for damages for the
content of the information transmitted, if
a) the service does not initiate the
transmission,
b) the service does not select the recipient
of the transmission, and
c) the service does not select or modify the
information contained in the transmission.
Transmission pursuant to first part includes
the automatic, intermediate and transient storage
of the information transmitted, if
a) the storage serves the sole purpose of
carrying out the transmission and
b) the storage is not stored for longer than
is necessary for the transmission.
The provisions in first and second parts
cover similar services if the service consists of
access to a communications network.
The Department commented on the
provision in Ot.prp.32 no. 4 (2003-2004):
As for §16. Exemption from punishment for
certain transmission and access services
This provision is new and carries into effect
Article 12 of the E-commerce Directive. This
provision regulates such services that are called
pure transfer-communications (mere conduits),
see Chapter 3.2.
Pursuant to the first paragraph, a service
that transmits information for a recipient of the
service is exempt from criminal and civil liability
for the content of the transmission if it fulfills the
requirements of letter a to c.
31
Translator: the E-commerce Act.
32
Translator: White Paper.
 Unofficial Translation of the “Direct connect-Oslo” case
The Norwegian translation of Article 12 no.
1 of the Directive implemented in §16 first para.
of the bill is somewhat misleading. The
Norwegian translation states that “a service that
offers an information-public-service which only
consists of transmitting information given by a
service-receiver in a communication network or
of giving access to the communication
network…”, while the Danish translation states
that “by delivery of an information-service (-)
which is offered by a service-receiver, or offering
access to a communications network…” The
Norwegian translation has inserted an “only”
which does not occur in either the Danish or the
English version. This “only” can be
misunderstood, and does not achieve the
limitation of the exemption-provision wished for.
The Department has on this background not
included the exception in §16 first para.
According to letter a the transmission of
information may not begin with the service
provider. If the service provider is the initiator of
the transmission of the information there exists
no exemption from punishment. The difference
between this requirement and the requirement in
first para. letter c, is that here is it the service
provider itself that sends the information, which
is not the case pursuant to letter c.
According to letter b the service provider
may not select the receiver of the transmission. It
is in Chapter 7.3 more narrowly discussed
whether a service provider is still covered by the
exemption from punishment if it offers a
selection of receivers on the basis of, for
example, demographical data.
Letter c lays down the requirement that the
service provider itself must not select or modify
the information being transmitted. A service
provider that makes only necessary changes
because of the format of the original in order to
transmit the information is not regarded as having
changed the information being transferred. Such
an adjustment does not change the content being
transmitted, only how it is presented. Whether the
conversion is intended by the receiver, who
otherwise could not get access to the information,
or by the conversion the transmission becomes
more secure or efficient, does not influence this
consideration. A service provider who adds his
own content during the conversion to another
format, deletes part of the content, or edits the
content of the text, may not be embraced by the
provision, see Chapter 7.3.
Pursuant to second paragraph a service
provider as mentioned in para. one is also
exempted from criminal and civil liability even if
the transmission includes the automatic,
intermediate and transient storage of the
information transmitted, if the requirements in
letters a and b are fulfilled. The requirement of
intermediate storage must be regarded as drawing
the line at instances where the information is
stored on a more permanent basis. Intermediate
storage will typically be covered by the provision
Direct connect-oslo_ENG – page 22
if it is done while waiting for available
transmission capacity. The requirement of
transient storage distinguishes services regulated
by §17.
Pursuant to letter a the storage must
exclusively serve the purpose of transmitting of
information. If the storage has other purposes is it
possible that the storage is embraced by §§17 and
18 of the bill. An example is that access to the
information may be given during the storage so
that permanent copies can be made.
The storage shall not continue beyond what
is necessary for the actual transfer, see letter b. It
is not possible to give a closer indication of time
as for what is “necessary” storage. This
requirement must be related to the requirements
in the second paragraph under which the storage
shall be intermediate and transient. Subsumption
in case of doubt must be made pursuant to a total
consideration, where the purpose and other solid
considerations are part.
[…]
Pursuant to the third paragraph the
provisions in the first and second paragraphs
apply similarly to service providers if the service
consists of offering access to a communications
network. This covers service providers that offer
access to the Net, and the servers, routers, etc. on
which the information is transmitted.
In the present case it is certain that
defendant did not initiate the transfer, he did
not himself select the recipient of the
transmission and he did not select or modify
the information being transmitted. This must
objectively be interpreted to mean that a
person that re-communicates information on
the Internet, whether paid or not, is exempt
from punishment.
The issue at hand is a question of
liability for aiding and thus there is a
requirement of intent, see decision from
Borgating Intermediate Court in RG-2003-
1268, which states:
There is not disagreement that at least a part
of those pictures and video-films that in 1998–
1999 were offered to Tele2’s “news”-subscribers,
and which are mentioned in indictment, are of
pornographic character. §211 of the Penal Code
punishes the negligent dissemination of such
material. The essential question is whether by the
E.U. Directive on E-Commerce Norway is
obligated to refrain from punishing one who
negligently communicates such illegal material.
The E.U. Directive 2000/31/EF of 8 June
2000 (Directive on Electronic Commerce) should
pursuant to article 22 be carried into effect in
each member state before 17 January 2002.
Norway has not complied with the deadline, but
 Unofficial Translation of the “Direct connect-Oslo” case
it is bound by public international law to
implement the directive into Norwegian law. The
lack of implementation, however, does not seem
to have significance for the present case on the
issue of use of law. Pursuant to §1 second part of
the Penal Code, the criminal law in Norway
applies with “the limits that follow from
agreements with foreign states or of public
international law.” Thus the question is what
limits exists on allowing punishment of electronic
dissemination of pornographic material pursuant
to the directive on electronic commerce,
especially Article 14 and Article 15. The
prosecutor in the present case has documented a
extensive consulting-statement of 18 February
2003 form the Justice Department, where the
Justice Department articulates on “The Provision
on Exemption from Liability for Networks in the
new law on E-commerce” and where the issue of
the requirement of guilt in connection with an
eventual liability to punishment is given
considerable attention. It is further explained that
in a proposal to amend the E-commerce Act there
is made a requirement of intent to punish a
service provider that illegally store information.
This is the reason the actor in the present case has
asserted a claim of acquittal.
The intermediate court reluctantly comes to
the conclusion that the E.U. Directive, together
with §1 second para. of the Penal Code, implies
that in the present case only purely intentional
acts can be punished. However, as the prosecutor
in the present case and under these special
circumstances has claimed acquittal, the court
leaves unresolved a discussion of this question.
The court accepts the claim of an acquittal.
The decision is unanimous.
The provisions must be interpreted in
connection with article 12 of the E.U.
Directive that grants exemption from
liability. However, this must be interpreted
in light of the preamble which gives the
background for the provisions. In the present
case is it especially number 44 that is
important. The Norwegian translation states:
[A service provider who deliberately
collaborates with one of the recipients of his
service in order to undertake illegal acts goes
beyond the activities of « mere conduit » or «
caching » and as a result cannot benefit from the
liability exemptions established for these
activities.]
The Swedish, Danish and English
versions state:
(44) En tjänsteleverantör som avsiktligt
samarbetar med någon av mottagarna av hans
tjänst för att begå olagliga handlingar går utöver
Direct connect-oslo_ENG – page 23
den verksamhet som består i enbart
vidarebefordran eller cachning och får därför inte
utnyttja de undantag från ansvar som har
fastställts för denna verksamhet.
(44) A service provider who deliberately
collaborates with one of the recipients of his
service in order to undertake illegal acts goes
beyond the activities of « mere conduit » or «
caching » and as a result cannot benefit from the
liability exemptions established for these
activities.
(44) En tjenesteyder, der bevidst
samarbejder med en tjenestemodtager om at begå
ulovlige handlinger, overskrider grænserne for
ren videreformidling eller caching, og den
pågældende kan som følge heraf ikke omfattes af
de ansvarsfritagelser, der er fastsat for denne
form for aktiviteter.
As shown, there is a limitation of the
exemption from liability if there is a
collaboration between one that operates an
information-society service and one (or
more) user(s). The court has to consider the
question of what is covered by
“collaborate”. It follows as a premise for the
Directive that the intention was not to hold
liable service providers that only carry or
store material. But it is a clear premise that
those who intentionally offer net-capacity or
storage-capacity to be used for illegal use of
the Internet shall be prevented.
As previously mentioned, the concept of
intent in Norwegian law embraces only one
who agrees with the offender that a criminal
act shall be committed. In addition, one who
without the knowledge of the criminal keeps
guard outside the house where the
housebreaking takes place is regarded as
collaborating with the criminal and having
intent and being liable for aiding in the
crime.
Defendant in the present case has Comment [t1]: Henrik: This paragraph should
explained that he operated as a “helpdesk” be left in the original Norwegian (indented and small
type), as the court then quotes three different
and helped users with technical problems. translations (including the official English
Thus, in a legal sense he must be regarded as translation) in the next three paragraphs.
collaborating with the users.
Based on the above the court finds that
defendant has acted with the required intent.
He was fully aware of what happened, he
desired the result and he thus cannot be
embraced by the rules on exemption from
liability in the E-commerce Act. Thus, he
 Unofficial Translation of the “Direct connect-Oslo” case
can be convicted for the remaining claims of
the charge.
The Fixing of the Sentence: There exists
no case law regarding punishment for
breaking the Copyright Act via the Internet.
The prosecutor has presented a claim of a
combination of unconditional imprisonment
and an order for community service. The
court emphasizes that there are an extensive
number of files that have been shared and
that it has happened on a very professional
scale. In the direction of mitigation there is
the fact that the accused has not previously
been punished or violated the law.
Furthermore, he has not had any economic
gain from the criminal acts except that he
has not paid for the music that he himself
has downloaded.
The court finds that even though illegal file
sharing is in the process of becoming a
social problem, there has been done only
economic harm to record and movie
producers etc. Nobody else’s interests have
been hurt and no persons have been put in
danger. In the eyes of the court it will in the
present case be too harsh to sentence the
defendant to unconditional imprisonment.
The court has determined the sentence to be
Direct connect-oslo_ENG – page 24
120 days of community service over 150
days. If the community service is not
fulfilled, the alternative penalty will be 120
days of imprisonment. This shall be reduced
by the 3 days the accused was in custody.
The convicted defendant has agreed to
community service.
Confiscation: There has been presented
a claim of confiscation pursuant to §35
second para. of the Penal Code, compare
§37 first para. The court finds the condition
for confiscation is present because the
machines have been used as tools to commit
the crime. There will be passed judgment as
claimed.
§12 first and second para. of the Penal
Code, compare §1, §62 first para., §57-§59
of the Copyright Act and Chapter 6 of
Regulations to the Copyright Act of 21
December 2001 nr. 1563 have been used.
Judgment will be pronounced when the
time-limit in §42 of the Criminal Procedure
Code has passed. Immediately after the
court adjourned the court held the first
conference on fixing the sentence. However
it was necessary to have several conferences
because of the extent and complexity of the
case.
The judgment is unanimous.