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

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Unofficial Translation of the “Direct connect-Oslo” case

See §1 second para. nos. 4 and 5 least 1,000 users) could make available a
under which a literary, scientific or artistic considerable number of music files between
work includes musical works, with or these persons, without the consent of the
without words, and cinematographic works. copyright owners.
a) d)
The basis is the following act or The basis is the following act or
contribution: contribution:
During the period of July 2003 through During the period from July 2003
May 2003, from his residence, .. in Y, with through December 2003, with use of a
use of his own computer with IP-address computer with IP-address 000.000.000.0 and
000.000.000.0 and/or from another place, A the domain name tu.X25.no that was placed
copied and made public, without the consent in NetCom AS’s locations in Sandakerveien
of the copyright owners, a large number of 140 in Oslo, he contributed as owner and/or
music files and movie files, in the capacity administrator of a Direct Connect hub with
as user/operator with the call-name the name of Jazzhouse, so that
“smoothmoves”, “Tor”, and “cream”, in approximately 50 persons made available a
several Direct Connect file-sharing networks considerable number of music files between
connected to a hub with the name of these persons, without the consent of the
Jazzhouse, Lushlife and Jazzgroove, as copyright owners.
described in post Ib, Ic and Id.

b) Claim II.
The basis is the following act or Copyright Act of May 12, 1961 no. 2 §54,
contribution: first para. subsection d, see also second,
During the period from April 17 2004 third and fourth paras.
through May 12 2004, with use of his own that penalizes a person who, under
computer with IP-address 000.000.000.0 and particularly aggravating circumstances,
domain name jazzgroove.sytes.net that was violates this law, by offering or otherwise
placed in NetCom AS’s locations in making available to the public works or
Sandakerveien 140 in Oslo, he contributed fixations as specified in §45, when the
as owner and/or administrator of an open copies have been produced in violation of
Direct Connect hub with the name of that section, or who is an accessory to such.
Jazzgroove, so that a considerable number In assessing whether particularly
of persons (at least 300 users at the same aggravating circumstances exist, importance
time) could make available a considerable shall primarily be attached to the damage
number of music files and movie files done to the right holder and others, the profit
between these persons and/or an unknown gained by the offender, and the general
number of persons, without the consent of extent of the infringement.
the copyright owners. Any attempt at a willful infringement as
specified in paras. 1-3 may be punished in
c) the same way as the completed crime.
The basis is the following act or
contribution: See §45 first para.
During the period from April 10 2004 under which sound fixations and films shall
through May 12 2004, with use of his own not be published until 50 years have elapsed
computer with IP-address 000.000.000.0 and since the expiry of the year in which such
the domain name lushlife.sytes.net that was fixation or film was made, without the
placed in NetCom AS’s locations in consent of the producer; nor shall copies be
Sandakerveien 140 in Oslo, he contributed made before such time without the consent
as owner and/or administrator of a Direct of the producer. If the fixation is published
Connect hub with the name of Lushlife, so during this period of time, the term of
that a considerable number of persons (at protection shall subsist for 50 years after the

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Unofficial Translation of the “Direct connect-Oslo” case

expiry of the year in which the fixation was gained by the offender, and the general
first published. extent of the infringement.
Any attempt at a willful infringement as
specified in paras. 1-3 may be punished in
a) the same way as the completed crime.
The basis is the following act or
contribution: See §42 first para. subsection a and
At the time and place mentioned in # Ia, second para.
he behaved as described, and the material under which a performing artist’s per-
was copied without the consent of the formance of a work may not without the
property owners. consent of the artist be fixed on film or on a
device which can reproduce the
b) performance.
The basis is the following act or If a fixation of a performing artist’s
contribution: performance is made as specified in the first
At the time and place mentioned in # Ib, paragraph of subsection a, no copies shall be
he behaved as described, and the material made of it, nor shall it be published,, without
was copied without the consent of the the artist’s consent,, until 50 years have
property owners. elapsed since the expiry of the year in which
the performance took place. If the fixation is
c) published during this period, the term of
The basis is the following act or protection shall subsist for 50 years after the
contribution: expiry of the year in which the fixation was
At the time and place mentioned in # Ic, first published.
he behaved as described, and the material
was copied without the consent of the a)
property owners. The basis is the following act or
contribution:
d) At the time and place mentioned in # Ia,
The basis is the following act or he behaved as described, and the material
contribution: was copied without the consent of the
At the time and place mentioned in # Id, property owners.
he behaved as described, and the material
was copied without the consent of the b)
property owners. The basis is the following act or
contribution:
Claim III. At the time and place mentioned in # Ib,
Copyright Act of May 12, 1961 no. 2 §54, he behaved as described, and the material
first para. subsection d, see also second, was copied without the consent of the
third and fourth paras. property owners.
that penalizes a person who, under
particularly aggravating circumstances, c)
violates this law, by offering or otherwise The basis is the following act or
making available to the public works or contribution:
fixations as specified in §42, when the At the time and place mentioned in # Ic,
copies have been produced in violation of he behaved as described, and the material
that section, or who is an accessory to such. was copied without the consent of the
In assessing whether particularly property owners.
aggravating circumstances exist, importance
shall primarily be attached to the damage d)
done to the right holder and others, the profit The basis is the following act or
contribution:

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Unofficial Translation of the “Direct connect-Oslo” case

At the time and place mentioned in # Id, See §42 first para. subsection a and
he behaved as described, and the material second para.
was copied without the consent of the under which a performing artist’s per-
property owners. formance of a work may not without the
consent of the artist be fixed on film or on a
Claim IV. device which can reproduce the
Copyright Act of May 12, 1961 no. 2 §54, performance.
first para. subsection b, see also third If a fixation of a performing artist’s
para. performance is made as specified in the first
that penalizes a person who, under paragraph of subsection a, no copies shall be
particularly aggravating circumstances, vio- made of it, nor shall it be published,, without
lates this law, by infringing provisions laid the artist’s consent,, until 50 years have
down in or in accordance with Chapter 5. elapsed since the expiry of the year in which
In assessing whether particularly the performance took place. If the fixation is
aggravating circumstances exist, importance published during this period, the term of
shall primarily be attached to the damage protection shall subsist for 50 years after the
done to the right holder and others, the profit expiry of the year in which the fixation was
gained by the offender, and the general first published.
extent of the infringement.
The basis is the following act:
See §45 first para. At the time and place mentioned in # Ia,
under which sound fixations and films shall he behaved as described.
not be published until 50 years have elapsed
since the expiry of the year in which such Aggravating circumstances are claimed
fixation or film was made, without the to be present, based on the considerable
consent of the producer; nor shall copies be number of music files and movie files which
made before such time without the consent were made or were to be made available
of the producer. If the fixation is published during the time-period, because the act had
during this period of time, the term of been done or was about to be done as part of
protection shall subsist for 50 years after the an organized file-sharing network, because
expiry of the year in which the fixation was of the large number of users that had or
first published. could have used the file-sharing networks,
the damage done to the rights holders, and
The basis is the following act: the extent of the violations.
At the time and place mentioned in # Ia,
he behaved as described. The charge is reported as it was pursuant
to the prosecutor’s record.
Claim V.
Copyright Act of May 12 1961 no. 2 §54, Trial was conducted on 18, 19, 20, 25,
first para. subsection b, see also third 26 and 27 of April. Defendant was present
para. and denied the claims. The trial was
that penalizes a person who, under adjourned on April 20-25 as the defendant’s
particularly aggravating circumstances, vio- counsel had received new evidence on the
lates this law, by infringing provisions laid afternoon before. The defense attorney
down in or in accordance with Chapter 5. found it difficult to review the material and
In assessing whether particularly had only the opportunity to get a superficial
aggravating circumstances exist, importance impression. [He argued that] Witness no. 2
shall primarily be attached to the damage should not be questioned before there had
done to the right holder and others, the profit been time to review the material thoroughly.
gained by the offender, and the general The court found several considerations
extent of the infringement. were present. There was the consideration of

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Unofficial Translation of the “Direct connect-Oslo” case

due process, see article 6 of EMK2 and academic environments. ICANN was
§293 second para. of the Penal Code, and originally selected by the U.S. Government
furthermore the court’s ex officio duty to to work as a global consensual organ with
secure all available information was present. the purpose of coordinating the assignment
The court could not overlook that the new of Internet addresses, and working out the
evidence - conversation-logs from the Net – protocol-parameters and administration of
could be of importance as evidence. The the most central machines of the
court found the only alternative was to infrastructure of the Internet addresses.
adjourn until April 25th. The World Wide Web is an Internet
The court heard six witnesses, and the service based on multimedia documents.
extent of documentation presented to the Information is graphically presented as
court was as mentioned in the records of the pages on the screen (webpages). These
court. pages are called homepages if they are the
The prosecutor asserted that the accused main page on the website of a person or a
should be sentenced as claimed to thirty firm. The homepage consists of text and
days of imprisonment and nineteen hours of pictures, but can also consist of other
community service over ninety days, or documents, objects or webpages.
alternatively to ninety days of imprisonment, It is the development of the World Wide
deducted by two days in custody. In Web that has had the largest impact on the
addition, the prosecutor sought confiscation. nearly explosive growth of commercial use
The defense attorney argued for ac- of the Internet. It is possible to present a
quittal, or alternatively for a mild sentence. firm, its products and services on the
Internet with use of sound and
The remarks of the court: pictures/movies. Further, it is possible to
offer customers direct ordering of goods and
The case raises several questions of a services via the net. The World Wide Web
criminal nature that seem to be of first has become a very important public relations
impression for a Norwegian or a foreign tool for most types of businesses.
court. Therefore the court finds it relevant The address-system of the Internet is
and necessary to give a short description of shared by all services. For a cybernaut to use
the Internet and the technology which has a certain service, he or she must find the
been used in the case at issue. address of that service. Every computer
The Internet is an international network connected to the Internet is identified by a
of computers that can communicate with so-called IP-address (Internet Protocol). An
each other by means of technical standards IP-address is expressed by four groups of
and protocols. The Internet had its origin as digits with a period between each group.
an American military research project and Because it is difficult to remember such
was originally a network for research and numbers, a hierarchical system was
education. Since then has the use of the constructed: the Domain Name System
Internet expanded to include commercial (DNS). In this system, each computer that is
services. Today, the Internet exists as connected the Internet gets a domain name,
anarchist and uncensored both in structure which consists of letters and words. The
and contents. The closest one comes to a DNS converts the text-based address to its
governing body of the Internet is ICANN, numerical equivalent. Therefore, the domain
the Internet Corporation for Assigned name is the entry to a certain place on the
Names and Numbers. ICANN seems to be World Wide Web and it can be compared
the only control or administration of the with an address or a phone number.
Internet. ICANN is a non-commercial organ The domains are a specification of the
that covers a broad coalition of Internet area or the category that the actual computer
users from commercial, technical and belongs to and consist of a standardized
suffix of the address. Examples of in-
2
ternational top-level domains are “com” for
Translator: European Human Rights Convention.

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Unofficial Translation of the “Direct connect-Oslo” case

“commercial”, “edu” for “education”, “gov” (3) a "supernode" system, in which a select
for “government”, “net” for “network” and number of computers act as indexing
servers.
“org” for “organization”. Examples of natio- The first Napster system employed a
nal top-level domains are “no” for Norway, proprietary centralized indexing software
“to” for Tonga and “dk” for Denmark. architecture in which a collective index of
The counsel for the defense has available files was maintained on servers it
owned and operated. A user who was seeking to
presented some American case law. The obtain a digital copy of a recording would
most relevant case for this court is “Metro- transmit a search request to the Napster server,
Goldwyn-Mayer v. Grokster”, decided by the software would conduct a text search of the
the U.S. Courts of Appeals for the Ninth centralized index for matching files, and the
Circuit, in which on page 11731 is written search results would be transmitted to the
requesting user. If the results showed that
(the court’s translation3): another Napster user was logged on to the
Napster server and offering to share the requested
To analyze the legal issues properly, a recording, the requesting user could then connect
rudimentary understanding of the peer-to-peer directly with the offering user and download the
file-sharing software at issue is required-- music file.
particularly because peer-to-peer file sharing Under a decentralized index peer-to-peer
differs from typical internet use. In a routine file-sharing model, each user maintains an index
internet transaction, a user will connect via the of only those files that the user wishes to make
internet with a website to obtain information or available to other network users. Under this
transact business. In computer terms, the model, the software broadcasts a search request
personal computer used by the consumer is to all the computers on the network and a search
considered the "client" and the computer that of the individual index files is conducted, with
hosts the web page is the "server." The client is the collective results routed back to the
obtaining information from a centralized source, requesting computer. This model is employed by
namely the server. the Gnutella software system and is the type of
In a peer-to-peer distribution network, the architecture now used by defendant StreamCast.
information available for access does not reside Gnutella is open-source software, meaning that
on a central server. No one computer contains all the source code is either in the public domain or
of the information that is available to all of the is copyrighted and distributed under an open-
users. Rather, each computer makes information source license that allows modification of the
available to every other computer in the peer-to- software, subject to some restrictions.
peer network. In other words, in a peer-to-peer The third type of peer-to-peer file-sharing
network, each computer is both a server and a network at present is the "supernode" model, in
client. which a number of select computers on the
Because the information is decentralized in a network are designated as indexing servers. The
peer-to-peer network, the software must provide user initiating a file search connects with the
some method of cataloguing the available most easily accessible supernode, which conducts
information so that users may access it. The the search of its index and supplies the user with
software operates by connecting, via the internet, the results. Any computer on the network could
to other users of the same or similar software. At function as a supernode if it met the technical
any given moment, the network consists of other requirements, such as processing speed. The
users of similar or the same software online at "supernode" architecture was developed by
that time. Thus, an index of files available for KaZaa BV, a Dutch company, and licensed under
sharing is a critical component of peer-to-peer the name of "FastTrack" technology.
file-sharing networks. Both Grokster and StreamCast initially used
At present, there are three different methods the FastTrack technology. However, StreamCast
of indexing: had a licensing dispute with KaZaa, and now uses
(1) a centralized indexing system, main- its own branded "Morpheus" version of the open-
taining a list of available files on one or source Gnutella code. StreamCast users connect
more centralized servers; to other users of Gnutella-based peer-to-peer file-
(2) a completely decentralized indexing sharing software. Both Grokster and StreamCast
system, in which each computer distribute their separate softwares free of charge.
maintains a list of files available on that Once downloaded onto a user's computer, the
computer only; and 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,
3
Translator: into Norwegian and without footnotes – video, picture, and text files. Some of the files
HERE copied from the original American court are copyrighted and shared without authorization,
decision at 380 F.3d 1154, 1158-60 others are not copyrighted (such as public domain

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Unofficial Translation of the “Direct connect-Oslo” case

works), and still others are copyrighted, but the (42) The preparatory report, Ot.prp.10 no. 26
copyright owners have authorized software users (1959-60), suggests that the sole and exclusive
in peer-to-peer file-sharing networks to distribute right to publish includes any possible way of
their work. The Copyright Owners assert, making the work known to the public. The third
without serious contest by the Software para. is thus not meant as a legal definition of
Distributors, that the vast majority of the files are “making available to the public”. The term is
exchanged illegally in violation of copyright law. technology neutral. I agree with this
interpretation of the law and remark that in the
In this context the court remarks that a statement to amendments to the Copyright Act
the term is referred to as a superior term.
“hub” [or node] is not a machine but
software that as a starting point can be (43) The sole and exclusive right to publish
installed on any PC with sufficient capacity. is not lost when the work is published for the first
Use of the Internet for file sharing of time. An example of making the work available
to the public is turning on music from the radio in
music has been dealt with before in a shop or a workplace. I refer to Rt-1953-633, the
Norwegian case law. In “Napster.no” the Bedriftsmusikkdommen11 and the Swedish
intermediate court4 described the use of the Morningtondommen,12 published in NIR-1980
Internet as follows: page 258. With reference to Rt-1995-35, the
Smartkortdommen13 there has in legal theory
been made the requirement that the method that is
“[A]’s business was based on sending other
used must give the public a fairly direct access to
peoples’ information to napster.no about
the work before one can speak of accessibility.
addresses to illegal music-files in the net. With
use of a script at Napster.no and the information,
(44) It is not disputed that the uploaders
links were made to the specific music-files. The
made illegal copying and illegal access available
essential fact in the case is that the cybernauts
to the public. However, I stress that if the linking
that used A’s website, the users, got direct access
is regarded as access then it will embrace both
to these music-files by clicking A’s links.
legal and illegal material that has been laid out.
Downloading from the place where the music-
The understanding of what is accessibility must
files were placed to the user’s own PC was
be the same in both incidences.
initiated automatically, and the user could choose
between playing the music, downloading the
(45) To illuminate the question whether the
music or canceling the downloading.”
linking in napster.no was accessibility to the
musical work, the parties have thoroughly dealt
The present case is different from with the technology behind the users’
“Napster”. Thus, it is not possible to draw possibilities of hearing music from links.
parallels between the decision5 of
(46) It is stated by the appealing parties that
Høyesteret,6 published7 as Rt-2005-41,8 and the linking gives independent and direct access to
the problem raised in this case. the music. A on his side has claimed that the
To fully understand the legal links only contained an address to a website, and
background of the case the court quotes by clicking the link the music was stored
from the Supreme Court decision in the temporarily on the user’s own computer. Only at
this time could the user play, or alternatively
Napster-case:9 store the music file for later use. A part of the
theory the parties have made reference to points
(41) Pursuant to §2, first para., copyright out that is can be of importance whether the user
gives – under the limits of the Act - sole and by clicking a link continued “being on”
exclusive right to control the intellectual property 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
4
Translator: of March 2004 from “Eidsivating direct links/deep-linking on one hand and on the
lagmannsretts” - unofficial English translation at other site surface-links – links to the website’s
<http://www.linksandlaw.com/decisions-135-napster- homepage.
norway.htm>.
5
Translator: of January 21, 2005, docket HR-2005- (47) For me it is not decisive whether it is
00133-A. one or the other type of link, nor if the user in a
6
Translator: Norwegian Supreme Court. technical sense “is found to be” on his own
7
Translator: in case reporter.
8 10
Translator: and at <http://www.lovdata.no/hr/hr- Translator: White Paper
11
2005-00133-a.html> (last visited February 2005). Translator: Business-music-case.
9 12
Translator: See Rt-2005-41, Lov&Data [Law & Data Translator: Morning-tone-case.
13
Magazine] 81/2005:3-7. Translator: Smart-card-case.

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Unofficial Translation of the “Direct connect-Oslo” case

computer, on napster.no, or whether he has and neither does he himself communicate the
“moved” to the website that is linked to. It is work to third-parties on request. For a user that
difficult to see why this should be decisive for does not yet know the URL or a precise
regarding the work being accessible to the public description for the reference to the website on the
in sense of the Copyright Act. The decisive factor Internet, the access to work is indeed first made
must be how the technique works – if and how possible by the help of the hyperlink and thereby
access is given. It may be possible to find links in the literal sense is the work made accessible;
that are coded in such a way that they must be but this is not any different than a reference to a
said not to have been accessible [to the public], publication in a footnote in a printed paper or on
but this has not been particularly illuminated to a website.”
the Supreme Court.
(52) I remark that the designation “URL”
(48) There can be no doubt that by making a indicates the address of a website on the Internet.
web-address known by reproducing it on the
Internet is accessibility. (53) The Copyright Act has its background
in Nordic co-operation, and the consideration of
(49) When the Copyright Act was enacted in Nordic unity is important for the evaluation of
1961 the problem of today was not present. What our case, although the decision from the Högsta
makes the evaluation of the principal statement domstolen has been criticized and in legal
difficult is exactly the technical possibilities that literature the opinions have been divided on the
the Internet and different software gives. Some question on liability for linking. On its face the
efforts have been made by legislators as to link can appear to be access to the work. The
evaluate liability etc. related to this new Swedish decision did not discuss another issue
technique. I mention the implementation of the E- which to me is a special problem – that the music
commerce Directive, see Ot.prp. no. 4 (2003- files also could have been reached by information
2004) and the work on the revision of the of the web-addresses on napster.no. Even though
Copyright Act. But liability in connection with these web addresses considered as text are
linking has not really been dealt with. complicated, to copy them and paste them into
the address-field is easy. It would give the same
(50) The Swedish Tommy Olsson case dealt direct access.
also with sound files made accessible through
links on Olsson’s homepage. Högsta domstolen14 (54) When illegal accessibility can be
regarded this as “public presentation”. The case combined with both punishment and civil liability
was a criminal case, and Olsson was acquitted there needs to be a reasonable sufficient reason
because public presentation of a sound recording why use of one method is affected but not the
was not covered by the recording producer’s sole other. The appealing parties have not been able to
and exclusive right, and it was the record give any sufficient reason for this, and I find it
producers that were offended in the case. extremely difficult. Furthermore, the Copyright
Act was not written with thought of the technical
(51) The opinion of the German Supreme evolution we have seen in the last few years, with
Court in 2003 in the Paperboy case, which I have the result that the Act at present is under
mentioned before, dealt with another issue and reconsideration in the Department with the aim of
facts, but clearly pulls in another direction. The amendments in part because of this.
case was presented to the15 Supreme Court in
translation by state certified translator Nils (55) The close analogy between direct
Nordang. The case dealt with material that legally linking to a website and giving information of a
was placed on the Net, as opposed to the present website’s address is further illustrated by the
case. On the basis of German law, the act of development of accessible software in relation to
making a direct-link to such material was not the Internet. For both e-mail and ord-processing
regarded as a violation of the copyright law, but can be found software that recognizes an Internet
rather as a reference to the work in a way that just address. Since it is so much easier just to click on
made access easier for the net-users to get a work a link, the software automatically makes an
that already was accessible for the users. address available through a click, that is, it
Regarding the linker’s operation, the translation converts it to a direct-link. Thus, pure and simple
states in part:16 this is how references and footnotes that state a
net-address can be changed by the software to
“He does not himself make the protected direct-links. This could create problems if a
work accessible for downloading by the public reference on this basis should be regarded as
accessibility.
14
Translator: The Swedish Supreme Court.
15
Translator: Norwegian. (56) The parties have tried to illuminate the
16
Translator: HERE re-translated into English from consequences of regarding the linking as
the Norwegian decision, not the original German accessibility. The starting point must be that
decision. linking, both to legal and illegal uploaded

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Unofficial Translation of the “Direct connect-Oslo” case

material, only can take place with the owner’s provisions that protects copyright”,20 and here the
consent. The appealing parties have referred to uploader’s violation consists of making the music
views in theory which hold that placing accessible. It cannot be derived from the wording
something on the Internet must be regarded as that the violation ceases when the uploading is
consent to linking. As an example, I quote finished in the technical sense, and to me such an
professor dr. juris Ole-Andreas Rognstad in understanding is very unnatural. In my opinion
Festskrift til17 Mogens Koktvedgaard (2003) page the violation of copyright continues as long as the
472: uploader lets the music stay on the Internet. I add
that it would be strange if the [statute of]
“There is no reason for requiring the limitation for such a violation should begin to run
originator’s consent to this in general. The from the time the uploading is finished.
problem can be solved in the same way as
the “consumption-problem”, through a (63) A has alleged that if the linking cannot
copyright default rule: Consent for use of be regarded as accessibility, then there should not
the work is regarded as covering the normal be any basis for liability for aiding. I do not agree
and usual linking to the pages. Here it is a with this argumentation. It is not a requirement in
question of the more definite limits of the criminal law that the aiding act in itself has to be
default rule. However, in this connection illegal. The linking has increased the effect of the
that is another issue.” uploader’s acts by increasing the accessibility to
the music. A himself has explained that the users
(57) Much can be achieved by reading generally could not find the music files without
consent into the normal situation, but there is also the links.
a question of defining limits that can be bases for
both doubt and disputes. Therefore, consideration (64) It is of no importance to the issue of
of the consequences is a contributing factor for aiding whether the uploaders had knowledge of
me to hold that the case must be decided on the A’s operation, see Johs. Andenæs, Alminnelig
subsidiary basis. This points precisely to linking strafferett21 (5 ed., 2004) page 327.
of illegal material, and it is such linking the
appealing parties seeks to stop or at least reduce. (65) Whether the linking should be regarded
as aiding requiring a remedy of damages must
(58) I now deal with the subsidiary basis. depend on an evaluation of the specific facts.
There must be drawn a limit from a general
(59) Pursuant to §55 first para. of the “unlawful” reservation. I refer to Andenæs page
Copyright Act, compensation for harm in the 154 and mention briefly that he states that the
sense of §54 can be given on the basis of the term unlawful often can be translated to include
ordinary damage rules. Aiding is punishable after “improper”, “unwarrantably”, “blameworthy” or
§54 second para. It is clear [from the text] and similar characterizations.
also from the preparatory work to the law that
damages can be awarded even if there is no basis (66) The principal and the aider shall be
for criminal liability. The usual requirements for judged on basis of their own conditions. This was
evidence in the field of damages is being used, held already in Rt-1908-790. I refer to Andenæs
not the strict requirements for evidence of both page 338. I can also refer to Erling Johannes
objective and subjective facts in the criminal law. Husabø, Straffeansvarets periferi22 (1999)
especially page 255. He notes that “aiders can be
(60) The appealing parties have alleged that prosecuted in Norway both in the case where the
A with intent has contributed to the accessibility aiding act is “done” in the country (§12 first part
of the music on the Internet. of the Penal Code) and were “the result has
happened in or is aimed” at this county ((§12 last
(61) I first deal with the claim from TONO18 part)”. Thus, it is of no importance if the
and NCB.19 The provision in §54 first para. letter uploaders could be punished pursuant to the law
a covers amongst others violation of the of the country in which they were residing -
protection of the copyright pursuant to §2. something that is not stated in the record.

(62) The intermediate court held that the (67) In my opinion, A’s acts are to be
uploaders’ illegal acts were completed when the regarded as aiding that is both intentional and
music was uploaded and that there thereby was extremely blameworthy. His aim with napster.no
no basis for liability for contribution. I do not
agree. The criminal provision targets “to violate
20
“å overtre bestemmelser gitt til vern for
17
Translator: Homage Volume to opphavsretten”.
21
18
Translator: The Norwegian organization for Translator: General Criminal Law, a treatise by a
collecting copyright fees for music and distributing it famous Norwegian Law Professor.
22
to the respective copyright owners. Translator: The Periphery of the Liability to
19
Translator: Norwegian Copyright Bureau. Punishment.

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was exactly to give others access to the music. producers involved in the case, belong to the
The homepage of the webpage shows this. The group of property owners that the Act protects.
introduction stated:
(74) As §54 first para. letter d is related to
“Welcome to napster.no the illegally produced copies, this must be
You are at Norway’s largest and best interpreted as such copies which can be
website for free music. Here you can download proscribed by the Copyright Act. Thus, it must be
as much music you want.” a requirement for liability for punishment – and
liability for damages – that the Copyright Act
(68) There was uploaded popular music by gives the property owners protection against the
well-known artists. Amongst others, links were production of copies which was done by the
made to music that was on hit lists like Norway uploaders. A geographical limitation of property
Top 20 and the VG-list. A has without doubt owners covered by chapter 5 of the Act applies
known the music was uploaded without consent pursuant to §58 and the foreign country rule.
from the copyright owners. He has acted with Prescript §6-1 first para. provides that the Act
intent and cannot be found to have been mistaken shall apply similarly to creations and works
of the law and that he was making criminal acts. embraced by chapter 5 of the Act for persons that
are citizens of or domiciled in a country inside
(69) Thus, A must be liable for the damage the European Union, and for a corporation with
TONO has suffered, first and foremost because office inside E.U.
some of the users, that otherwise would have
bought CDs, got the music though downloading. (75) A has not denied that if he is regarded
Causality between his acts and TONO’s loss as liable for damages to TONO, he will also be
exists without doubt. I add that liability for liable to artists and record-producers embraced
damages in this case is in no way inconsistent by §58 of the Copyright Act or the foreign
with freedom of speech or expression. country rule. As for artists that do not have
citizenship in or are domiciled in the E.U. and as
(70) I do not find reason to deal with the for producers outside the E.U. he asserts these are
issue that A should not be liable towards NCB. not covered by the protection.
Damages in connection with infringement of
copyright is measured by one figure. It is then up (76) I do not agree as for the record-
to TONO and NCB to divide the total between producers. §58 second para., third sentence
themselves, as they arranged. states:

(71) Finally I note, that is clear and “The provision in §45 concerning the
indisputable that as for TONO and NCB there right to make copies shall apply for the
exists no problem in relation to copyright benefit of all sound and film fixations.”
protection on the international plan. Through
precept to the Copyright Act of 21 December (77) When the question is the producers
2001 no. 1563, the foreign country rule, in protection against production of copies pursuant
pursuance of §59 of the Act, foreign works are to §45, there exists no geographical limitation as
protected as if they were Norwegian. to who is covered. Thus, the uploaders’ produc-
tion of copies is covered by the Copyright Act,
(72) With regard to creative artists and and A has aided the uploaders to make available
producers, they are protected in Chapter 5 of the copies that were produced in violation of §45.
Copyright Act, especially §42 and §45, which
does not give a monopoly for public presentation (78) The provision in §58 second para., third
of recordings. In the amendment to the Copyright sentence does not cover artists. This must mean
Act of 23 December 1988 no. 101 was as §54 that chapter 5 of the Act only protects them
first para. letter d established a criminal – and against recording of their presentations to the
thus also damages – protection for creative artists extent provided by other parts of §58 or by the
and other property owners pursuant to chapter 5 foreign country rule. The provisions of chapter 5
of the Act, through a ban against making of the Act which the property owners embrace
available to the public the works and recordings also limit the scope of §42. Since §54 first para.
mentioned amongst others in §42 and §45, when letter d covers publication of recordings as
the copies are produced in violation of these mentioned in §42, I cannot see other than this
provisions. only covers those artists that are protected by
chapter 5. As §45 does not cover artists, I can not
(73) It follows, as I have previously see that they can plead that the recordings are
mentioned, that the uploaders of music have violating this provision.
made it available to the public, and that A must
be regarded as having aided this. However, the (79) I have reached the opinion that A’s
question arises whether all the creative artists and liability for damages to the artists must be limited
to those artists that are embraced by §58 or by the

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foreign country rule. It has been asserted by the testing software defendant has designed
record companies that even if such a limitation himself.
has to be made, this gives no reason to reduce the
total amount of damages decided by the trial Thereafter, [A] got a request from his
court as the exclusion must be regarded as fiancée [B] and from a friend [C] to place a
moderate as reasoned by the trial court. I agree. hub on his server at Netcom since they
In the present case one of the acts for themselves had difficulties with their
which [A] is charged is that he ran three machines. Defendant has explained that he
hubs on which the file sharing was done. regarded these persons as his friends and
What happens is that a request to search the that he wished to do them a friendly turn. He
file-list goes through the hub, while the oth- received the hubs in the form of a file in so-
er contacts between the users are done dir- called zip-format which contains an archive
ectly between the users, not through the hub. of files in compressed form. The zip-file was
When this happens there is nothing in placed on the machine at Netcom, un-zipped
the hub that shows what is happening and the hub was activated. The files were
between the users. received in full working order, wherefore
Defendant has explained that during a defendant did not have to do anything more
period of his life he used the Internet as a that just start the hubs, which immediately
refuge from the daily life. It was here that he began working.
meet those whom he refers to as “his friends Furthermore, the defendant has testified
on the Net”. He regards many of those he that he was only a guard with the task to see
meet there as his friends, even though for to it that the hubs were working. He
most he has never met them other than on received from other people a large amount
the net. Amongst others, he met his fiancée of technical questions that he tried to solve.
on the net. During the trial, the court was presented
Defendant belongs to a group on the with “config”-logs and some logs from
Internet Relay Chat (IRC) that discusses conversations defendant had through the
Jazz, among other topics. However, defen- Internet. The latter consists of only a part of
dant found the IRC-service had too many approximately 25,000 A4-pages that had
conflicts and looked for other services that been printed. The court has taken notice of
were more protected against attacks. During the defendant attorney’s objection, but finds
this process he considered starting up an that the documentation to a large degree is
FTP-server to exchange files, but he ended representative of the full content of the
up using the software “Direct Connect” logs.…
(hereinafter “DC”). The reason he choose The court finds by the given evidence
the latter was that both file sharing and chat- that in general, the material placed on defen-
service were integrated in the same service. dant’s computer is material which is
He tried to get his friends to follow and protected by the Copyright Act. In general,
join him in using this service and established the material is newer than the 50 year
for this purpose a hub, “Jazz-house”. duration in the Act and is covered by the
Defendant described it as a “test hub” with §58 of the Copyright Act or the foreign
approximately 50 registered users, of which country rule, as the Supreme Court outlined
30-35 were active. It was a closed hub, that it in the “napster.no”,23 see above. On the
is, one had to be registered as a member basis of this evidence the court holds that
with a username and password before using there no consent was given by the copyright
the network. Jazz-house was working from owners to the use of vast majority of the
July through December 2003. The hub was files.
placed on a server at Netcom that was
owned by an employee there. Later [A] had Claim I a: During the trial defendant
a server built, which was placed at a data- explained that he initially operated a so-
room at Netcom. The choice of place was called “0-slotpolicy”, that is, he did not
made with the purpose, amongst others of
using Netcom’s high-speed connections for 23
Translator: case.

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allow persons to download from his own been in the courts shortly before defendant
computer. Along the way, this was began his hubs and that in connection with
moderated in such a way that defendant that case there were newspaper articles on
admits he, expressly to whom he regarded as copyright, intellectual property etc. More
his “friends”, allowed downloading. than anything, the court points out that
Here, pursuant to case law, see the defendant clearly was afraid of American
“napster.no-case, copying and publishing record producers who searched for illegal
have been done. What differentiates that file sharing, and that his DNS-address and
case and the present is that in the first case IP-address were changed several times when
links were placed on the website, whereas in he thought the authorities had infiltrated
the present case links were placed on the them. Furthermore, there are examples of
defendant’s computer. statements like “nobody cares about a small
The court finds that the evidence shows jazzhub”, something that indicated that those
that defendant gave persons access to files involved were clearly aware of the illegality
on his computer. The court does not find it of the acts.
significant whether one makes links or gives On basis of the above, the court holds
persons access to music files on his own that not only did the defendant know that
computer. Legally, both acts must be file sharing of the material was illegal, but
regarded as “making available”, as long as that he deliberately shared music which he
persons other than the defendant in fact are had saved on his computer with others.
given access to the music files. The court The next question is whether defendant,
finds that the evidence shows that defendant because of the exceptions in §12 of the
has given access to a large amount of music Copyright Act, has acted legally. It is legal
files from his computer, music he had not to copy files for “private use”, including
been allowed to publish by the property family, friends etc. There exists a fair
owners. Thus, he has objectively violated amount of case law and discussions as to
the rules in the Copyright Act. what is embraced by the definition of
The court has to determine whether such “private use” and what is not. In the present
conditions are present that require a sentence case – on which subject the court will deal
to be imposed on the defendant. The court further with later on - defendant is charged
first deals with the question of excusable with running three different hubs with
mistake of law. The court finds that there different user terms. Defendant was a user of
must be found specific circumstances before these hubs and used them in a smaller or
the court can acquit defendant. The larger extent to communicate with others.
commentary to the Penal Code gives as As for Jazzhouse, this was a small closed
examples of conditions that can imply hub with circa 30-35 active users.
acquittal, that a law-paragraph is new and Jazzgroove was open with several hundred
makes changes to the previous law, that the users, whereas Lushlife was closed, but with
text of the law is ambiguous or uncertain, a significant number of users which
that one has relied on statements from the defendant had actively recruited.
authorities etc. The court finds that defen- A subject the court has to determine is
dant was not mistaken regarding the law how legally to deal with the persons one
concerning the issue of sharing music files meets in Cyberspace, but who one only after
and movie files. Indeed, although defendant or long period – or never – meets face to
has at certain times declared in the face. It is possible that the way to meet
conversation-logs that “file sharing is legal people has changed after the invention of the
in Norway”, certain other aspects show that
defendant was aware of the law. The court
<www.geocities.com/hssph/DVDjon2.pdf>, see also
finds that the so-called “DVD-case”24 had the civil case DVD Copy Control Association v.
Andrew Brunner, Jon Lech Johansen, Masters of
24
Translator: the criminal DVD-Jon cases in Norway, Reversed Engineering (MoRE), et. al., 10 Cal.Rptr.3d
translations of decisions at 185, 116 Cal.App.4th 241 (Cal.Ct.App.6.Dist.,
<www.geocities.com/hssph/DVDjon1.pdf> and February 27, 2004).

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computer and the Internet. The question the could without punishment download files
court has to ask is whether the fact that one which illegally were made available on the
has not met another person face to face gives Net.
reason to state that a friendship does not The question is, whether defendant by
exist. his acts has produced his own copies “in
The court finds it hard to accept such an violation of the rules” and thereafter made
argument. The court has to follow the them available for the public. The court
development of the society and to recognize finds that the defendant’s acts cannot be
the fact that new ways of getting together evaluated in a vacuum, an issue the court
have arisen. The court finds that it is will discuss in connection with the question
possible to describe a person as a friend of contribution or aiding. The fact that
even though one has only communicated defendant has a large amount of music files
with that person via the Internet, just as well on his computer does not in itself prove that
as a person one had only talked with on the he was planning to making the files avail-
phone. This does not mean that the issue of able on the Net. However the court holds, in
frequency between the contacts are light of defendant’s testimony regarding his
irrelevant, but only that contacts through the desire to maintain an environment for people
Internet do not exclude the possibility of interested in jazz, his activities, the large
establishing a friendship. amount of files that was available, and the
Defendant has mostly characterized the file sharing the court has found already
people he had contact with on the hubs as proven, see above under # Ia, that it has
his friends and family. This is especially the been proven, as to the large amount of the
case for Jazzhouse, which had a limited files this case is about, that defendant both
number of persons. However, the court finds had the intent of using the files for private
it unnecessary to discuss how large the use and the intent of sharing them with
group can be as the court finds it proven that others. The later is illegal and thus, the
– with few exceptions - there do not exist copies were produced in violation of the
the kind of personal ties which are required Copyright Act.
for concluding that immunity applies. There The court finds that the evidence shows
exist printouts of communication logs which that defendant has acted as described in the
show that defendant has allowed file sharing claim. By his acts he has infringed the
with persons he clearly never previously had protected rights to the work that the
had communication with. The court finds producer and the performing artist have as to
this weakens defendant’s own evidentiary both copying and publishing. He has acted
statements on this issue. Thus, the court with knowledge of his lack of authority and
holds it is proven that defendant has shared with knowledge of the illegality. He shall be
his music files with others, files he knew he convicted for this.
did not have property rights to, and with There is an occurrence of different
persons that cannot be regarded as embraced aspects of the same violation which are
by §12 of the Copyright Act. He shall be covered by several statutes. Thus, “ideal-
convicted for Claim # Ia. concurrence” and the criminal statues can be
used together.
Claim # II a, III a, IV and V: During the
trial there was proposed a thesis pursuant to Claim # I b, c, d, II b, c, d, III b, c, d:
which downloading becomes illegal if one The next question the court will deal with is
after having downloaded protected files for the issue of defendant’s contribution to or
private use thereafter places these files on aiding of illegal file sharing. The question is
the Net. For its consideration, the court must partly dealt with by the Supreme Court in
bear in mind that downloading for private “napster.no”, #77, but as the facts are
use is legal and that there until now has been different in the present case, it is necessary
no requirement of a legal “foundation for to examine the issue more closely. Initially,
copying”. This implies that until now one the court points out the difference, namely

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Unofficial Translation of the “Direct connect-Oslo” case

that in the present case the hub had only a rejected a ticket-fine and the first voting
“contact-creating” function. The exchange judge observed:
of file-lists and the transmission of the files
themselves took place directly between the From a pure linguistic understanding of §3 it
users, not via the hub. can be said that the defendants, by letting
themselves and their tour-equipment be
The court must look at the general transported in this way, made a “use” of the snow
requirements for contribution or aiding, and scooters. They had benefit of the snow scooters
next look at the special requirements for as means of transportation. However, I have
contributory or aiding in this case. It is come to the conclusion that this cannot be the
basis. A fortuitous, tollfree, and passive and
without doubt that the case at hand is in the accidental conveyance without any connection to
gray border-zone of whether contribution or the driving itself – as is the case here – is not a
aiding is present or not. It is necessary to criminal act.
look at branches of jurisprudence other than
that at issue in this case, amongst others, From this decision it follows that ran-
since there is no case law similar to this dom incidents are excluded from the branch
case. of jurisprudence on contribution or aiding. If
In this case there is no issue of physical, one wishes to look for incidents where
but rather psychical contribution or aiding. aiding has been condemned, the court points
On this subject it is stated in Andenæs: to Rt-1995-1228 (the Andrawes case):
Alminnelig strafferett (5 ed.) page 327:
The majority of the intermediate court has
A psychical contribution or aiding can determined that A “had not influenced the further
consist of “tilskyldelse” [“incitement”] or good sequence of events until C shot the air pilot”. The
advice. Evidence on whether the principal prosecution argues that aiding in §233 of the
criminal would not have done the act without Penal Code does not require any causality
aiding is not required, it is sufficient that the between the act of the accessory and the main
intent is fortified or that the good advice has criminal. There has been made reference to Johs
influenced the planning or the execution. Andenæs: Alminnelig strafferett, 3rd edition page
290 that states that “criminal aiding does not
require that the contribution has been necessary
There is made reference to25 Rt-1926- to reach the result”. We refer further to the
581, where a man in the trial court was decisions that are quoted, especially Rt-1948-13
convicted for aiding sales of liquor. He had and Rt-1948-175 which had similar facts to the
seen his wife selling liquor from their present case. Even though A stated that she did
not want the air pilot killed, she continued
apartment without his having intervened. contributing in the capture. Andenæs says at page
His conviction was revoked by the Supreme 290: “Anybody, who contributed to such a joint
Court because an passive act not could be action, shares the responsibility for the results as
regarded as criminal aiding even though one far as these are coved by the intent.”
thereby could consent to the act. The majority of the intermediate court has
also discussed whether A had a duty to intervene
There is made further reference to Rt- against the principal criminal. There is made
2003-902 where the Supreme Court held reference to Andenæs page 291 which states that
that a man, which had rented a part of his even if a person has a special duty to prevent the
office for the storage of furniture and crime, passivity in general cannot be punished.
Pursuant to the description of the majority of the
movables, could not be convicted for aiding intermediate court, the prosecutor argues that A’s
illicit distilling even though he did not behaviour cannot be characterized as pure
prevent future production. passivity. The majority holds that she “resumed
The court refers to Rt-2000-1455 which her role as capturer” – armed with hand-grenade
dealt with illegal motor-traffic in wilderness she continued to hold the passengers and cabin
crew in check. Thus, her role was in no way
areas. The defendants were offered a free passive.
ride in the wilderness without it being Therefore, the prosecution claims that the
planned. They rode into a national park and description of the intermediate court is to be
were spotted by the authorities. The court considered objectively as criminal aiding. Thus,
the criminal court has misintrepretated §233 of
the Penal Code on this issue.
25
Translator: case reporter at.

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Furthermore the majority holds that even if The majority of the intermediate court has
A had argued against the killing of the pilot, she found that A did not strengthen the intent of the
still was aware of the possibility that he might be principal or in any other way contributed.
killed, and she continued nevertheless aiding the The prosecution’s attack on this issue must
action. The prosecution finds that this is refer to the assessment of the evidence rather than
sufficient to establish intent, since this to the interpretation of the law.
description is embraced by the so-called positive Also as for the question of whether A had a
consent of the intent-concept. Reference is made duty to prevent the principal from the killing, is it
to Andenæs page 277 and Rt-1980-979. claimed that the prosecution is attacking the
Pursuant to the description of the majority, intermediate court’s assessment of the evidence.
this in the opinion of the prosecutor fulfills both It is an assessment of the evidence of the actual
the objective and the subjective requirements for facts in the cabin of the airplane that the majority
criminal liability under §233 of the Penal Code. used for determining that A did not have a special
Since the intermediate court nonetheless finds duty to do more than she did toward the principal.
that she cannot be held liable for this, the court The grounds relied on by the majority of the
must have misintrepretated §233 on both the intermediate court seem sufficient. In the reply it
objective and the subjective aspect. is more closely explained why it seemed
As mentioned, the majority took as its basis impossible for A to intervene against the
that A’s act “did not influence the further principal.
sequence of events until C shot the pilot.” It As for the question of guilt pursuant to §233
should be remarked that the majority did not of the Penal Code, the majority of the
consider further whether there was “good reason” intermediate court held that A had not shown an
to suspect the opposite. Because the majority intent to kill, and there is no reason to presume
found this to be the determinative issue, they the court has misunderstood the concept of intent
ought to have discussed this essential point in the code.
thoroughly. Thus, alternatively it is claimed that
the courts reasoning is inadequate on this issue. A asserts that:

The prosecution has asked the court to “the appeal should be dismissed.”
decide that:
The Supreme Court points out:
“The decision of the intermediate court is
rescinded”. As remarked above, this is the third time the
Court has dealt with this case, and the second
A has in its brief on appeal especially time the Court considers it in connection to the
pointed out: question of whether A with good reason can
come under suspicion of aiding the killing of the
Even if causality is not a requirement for air pilot B.
aiding, at least there is required what Andenæs During the consideration the Court, as
describes as a “contributory causal relation”. It previously, is bound by the restriction of
seems to be this requirement that the intermediate competence provided by §388 of the Criminal
court cannot find. There is also made reference to Procedure Code.
Henry J Mæland’s commentary to the Penal Code An essential issue in the case is whether the
that states the “aiding must have had some killing can be regarded as connected to the
function to the crime.” Further there is made capture of the airplane. In this respect, the Court
reference to Erling Johannes Husabø: Rett til makes reference to the German arrest-decision of
sjølvvalt livsavslutning26 (1993) where the August 18 1994 where it is pointed out the killing
aiding-concept in §233 is thoroughly discussed. “was done to frighten the passengers and the
As for the reference to Andenæs’s statement crew and to emphasize the demands of the
on “joint actions” it should be noted that the captors.” Reference should also be made to other
“joint action” in the present case not was the grounds made in the arrest-decision on the
killing of the pilot but the capture of the airplane. background for the hijacking and on the several
The majority made it clear that the killing was an incidents of threats to kill all the passengers and
“independent act, distinct from the capture of the crew members if the demands of the hijackers
plane.” were not honored. These demands included the
It is asserted that the majority’s reasons are release of nine German terrorists and payment of
not imperfect since it was determined that A did 15 million dollars in ransom. To force the
not influence the sequence of events. There does airplane to start again after a long stay in Bahrain
not seem to be any reason to suspect this finding before it flew to Aden, where the killing took
as there has to be found an overwhelming place, there had been made a specific threat of
likelihood that the suspicion is justified. killing the pilot and some of the passengers.
In light of this background it is surprising
26
Translator: The right to self-elected end of one’s that the majority of the intermediate court states:
life.

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“Even though the killing happened installed a burglar alarm, they discussed
while the plane was captured, the majority whether to cut the electricity. B explained
regards the killing as an independent act, where the fuse box was place in the
distinct from the capture. residence. C drew a plan of the residence,
The act of the killing appears neither to including the location of the bedrooms of
be necessary or rational to preserve the the parents and of the sister and the sisters’
capture or to achieve the capturers’ goal. C husband. On the plan was also marked the
was alone in both deciding the killing of the fuse box. During the discussion of how to do
pilot and the homicide.” the killings, it was remarked that they had to
kill the most agile persons first and that one
The statement has both legal and evidentiary could use a disposable dress and disposable
implications. socks to prevent making trails. A pointed out
As for the aiding-responsibility in §233 of that one could not kill people because of a
the Penal Code, it is the opinion of the Court that fight over a farm. B replied that she
those who participate in a hijacking – or at least understood the seriousness of the situation,
such a capture as the present – have an aiding while C stated it was a question of life or
responsibility for the killings that occur during death.”
the capture unless special circumstances show
otherwise. The Court makes reference to the First, I look at whether the grounds for the
decisions cited by Andenæs: Alminnelig decision of the intermediate court on the issue of
strafferett page 290 at the bottom about the the fixing of the sentence for A gives any basis to
criminal responsibility for aiding illegal assume the intermediate court used the law
executions and other actions with the result of incorrectly. The intermediate court notes:
homicide during the Second World War. The
single participant cannot escape from his “A clearly had a more limited role than
responsibility by subordinating himself to a the married couple. She traveled to Molde
leader, who has the absolute command authority. with money that she knew B had provided
so D could buy weapons on the illegal
If one uses this decision as basis, the market. After having bought two pistols, she
defendant can be convicted for aiding since went to farm X determined to hand over the
pistols to B and C.
he has been a part of a joint action with the To some extent it is uncertain whether
purpose of sharing files with others without A had any intent to kill before she arrived at
paying the property owners. farm X on the night before Christmas Eve.
The court also refers to Rt-2002-1717 But she knew that the married couple looked
to buy illegal weapons, and that they had
(the Orderud case) that notes: asked her whether she could get hold of a
“torpedo”. The intermediate court holds she
As for the further discussion I remark that at least from this moment regarded it as
the intermediate court on the issue of the fixing possible that the pistols might be used to kill
of the punishment (amongst others) explains the somebody. Despite this she brought the
following about the planning of a killing on farm weapons, which she hid in the barn, and
X the night before Christmas Eve 1988: brought them into the living room after the
other guests had left the Christmas party.
“B initiated the killings. In Fall 1998 he Because of this involvement she had a clear
asked A and D whether they could provide duty to prevent the pistols from being used
weapons. He also gave 20,000 crowns to D for the killings.
so he could purchase the weapons on the After she had brought the pistols into
illegal market. This money, or a part of it, D the living room, she witnessed a planning in
gave to A, who then bought two pistols in details of the killing of B’s parents and sister
Molde. After the party on the night before and the sister’s husband. The intermediate
Christmas Eve the weapons were brought court holds she from then on regarded there
into the living room on farm X. D showed was every probability that the planning was
how to load the weapons, and explained how seriously meant and that they would carry
they should be used. B, C and D were through with use of the pistols she had
wearing disposable gloves during the handed over. Since she with this kind of
demonstration of the weapons. During this knowledge, and after deliberation, did not
they began to discuss how to kill B’s parents make any efforts to remove the pistols or in
and sister and the sister’s husband. It was any other way prevent their being used, she
suggested that a burglary should be has by her omission become guilty of aiding
simulated by using a glass-hammer when an intentional homicide.”
entering the door to the porch so the least
damage was done. Because B and C were While the opinion of the prosecution was
doubtful of whether B’s parents had that A already from a earlier time had been active

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in the planning of the killings, the intermediate torpedo, and when she handed over the pistols,
court does not consider this; but holds that it is she calculated that murder was at least a realistic
somewhat uncertain whether intent existed at a possibility. Furthermore, the space of time was
time before she arrived at farm X the night before very short until she realized there was every
Christmas Eve 1998. Firstly, I find without doubt probability that the killings would be carried out.
that if the intent existed at the time she handed Nevertheless she did nothing to prevent the
over the pistols then the crime is compassed by danger that her participation had created. A plain
§233 of the Penal Code. In that case to be exempt and obvious possibility was pure and simple to
from punishment she would have to prevent the recapture the pistols, but other acts could had
corollary, see §50 of the Penal Code. been done to prevent the murders, for example
However, the basis of the fixing of the she could had notified the police or the person to
sentence of the intermediate court is based on the be killed.
assumption that even if the intent was not present Thus, I see no error in the opinion or in the
at the mentioned time, A nonetheless had a duty use of the law as stated in the decision of the
to act when she shortly thereafter – having heard court. Thus, the essential question is whether the
of the planning of the killing – had to know that instruction to the jury of the intermediate court
there was every probability that the planning was implies that the court in its decision used the law
seriously meant. When she after consideration wrongfully. As I have mentioned, the instruction
did not fulfill this duty, she must be regarded as to the jury was not entered into the record of the
guilty of aiding a willful murder. This implies court, but was tape-recorded, and a transcript
that the failure to recapture the pistols, or in any hereof was presented to the Supreme Court.
other way to see to it the planned killings would From the instruction to the jury the defense
not take place, has to be regarded as punishable attorney has pointed at:
under §233 of the Penal Code.
The provision in §233 first and second parts “Similarly for A.
on deliberate and willful murder does not If she overheard the planning of the
mention omission as a violation. However, even murders on the night before Christmas Eve,
though omission is not a starting point, and it is and she can be blamed for not realizing the
not covered by the provision, it is not doubted seriousness [of the plan] and that it was real
that in special circumstances there can exist a as the pistols were placed on the table at
duty to act and one can be punished pursuant to farm X, she had to take them home with her
§233 if one neglects such a duty. In legal theory She like F had at that time a duty to
culpability has been stressed as a criterion for prevent her contribution – the risk of harm
punishing omissions, see amongst others caused by her involvement.”
Andenæs: Straffbar unnlatelse27 (1942) page 282.
I also refer to page 288-289 where Andenæs says: It is especially the wording “can be blamed
for not realizing the seriousness [of the plan] and
“One who has planned a crime often that it was real” that the defense attorney attacks
uses help from naïve people that provide and holds wrongfully implies a guilt requirement
him information and tools,… Naturally, the – namely that A’s negligence would be sufficient
helper is accountable if he continues his aid to answer yes on the primary questions which
after he realizes the real truth of the matter. dealt with aiding to willful murder. I agree the
However it is doubtful whether a special word “reproach” naturally has been thought to
duty to intervene can be imposed on the apply not only to intentional but also to negligent
aiding person. Still, one can have acts. Detached these sentences in the instruction
participated in such a substantial way during to the jury can give the impression that too small
the preparations and been involved in such a a requirement has been called for of the jury by
way that it is natural to regard his passivity the intermediate court.
as aiding.” However, the picture becomes different
when one puts the statements into their full
Husabø in Straffeansvarets periferi perspective. I call to mind that is was a big and
emphasizes in an example at page 186 the complicated task to give instructions to the jury
affiliation requirement – the requirement of a in this case. There were four persons indicted,
special connection between the person that leaves between these were different kinds of aiding acts
an act undone and the interest the crime- to be considered, and there were big differences
provisions pursue. between the prosecutors and the defendants’
No matter which of these approaches one attorneys’ opinions of the law and the sequence
chooses, I agree with the opinion or use of the of the events.
law by the intermediate court – on the basis of the The instruction to the jury was very
facts the court used while fixing the sentence, A thoroughly and detailed – the transcript is over 22
had a duty to act. She had bought the pistols pages. The outline is very logical and stringent,
illegally, was asked whether she could provide a with distinct explanation of amongst others the
definitions and requirements of intent, willful and
27
Translator: Punishable Omission aiding. The presiding judge of the intermediate

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court made clear that the principal question for has stated earlier, and what happened has no
the court is willful murder, he explained influence on my conclusion.
exhaustively and correctly what intent means and
embraces, what the requirements are, and at what At the citation from Andenæs: Staffbar
time intent must exist. I point out especially that unnlatelse in the Orderud-case, the book
the presiding judge made clear that negligence is
not sufficient, and stated in part: does have an example of responsibility that
can arise by passivity:
“Thus, the principal question in the
present case is one of willful murder. “A truck driver Olsen was hired by two
… well-known acquaintances to drive from a place
At a lower degree of likelihood than near Moss and pick up some goods the two
that there is every probability that persons had left at that place. The car was parked
(something will happen) the situation is in the woods and all three stepped out of the car
regarded as a negligent killing28 - §239 of and continued by foot circa 100 meters past a
the Penal Code. building where the two had planned a burglary.
Negligence is not sufficient to answer They stood some time at a barn, then went back
yes to the principal question in the present to the building, and while the driver watched, one
case. began to remove the kit of a window frame so he
Intent is required. could break in. No word was exchanged. During
In the questions put forward to you29 the work for removing the window they were
there is no question on negligent killing. discovered by some of the owners’ employees.
As attorney Kjensli discussed in his The driver was convicted for aiding an attempt of
pleading (final statements) D was in the trial burglary. The court held it had been proven that
court convicted for negligent killing. he had had a strong suspicion that something was
Here in the intermediate court that wrong when they parked the car in the wood, and
problem or issue only has to be dealt with if that he was fully aware of the issue when they
the principal question on intentional murder stood at the barn at the other side of the building.
is answered no. Had he backed out by refusing to allow his car to
In that case you30 will be issued a new be used to transport stolen goods, there would
instruction on negligent killing.” have been no burglary. On the contrary, he
without objection followed the two others and
The formulations that the defense attorney stayed there as an onlooker. That he had neither
attacks occurred in the presiding judge’s actively participated in the burglary itself or
instruction about the guilt requirement, but a positively encouraged it, could under the specific
section further in the instructions, he deals with circumstances not exempt him from being an
the requirements for withdrawal from completed accessory.
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
On the question of intent, the court will
active in the planning of the killings, and the refer to Andenæs, Alminnelig strafferett (5th
instruction to the jury had to take into ed.) page 233:
consideration that the bench members of the
intermediate court agreed to this. The basis of the Intent is present also in case of an unwanted
presiding judge’s instruction on withdrawal from result if the offender has calculated it as certain
attempt had to be that A had sufficient intent at a or there is every probability of it. One who sets
previous time. It can fairly be stated that it is hard his house on fire to get the insurance is an
to discover what the presiding judge meant with intentional killer if he presumed it as certain or
the wording “and she can be blamed for not there was every probability that the tenant would
realizing the seriousness [of the plan].” be burnt to death. That he regrets people could be
Nevertheless I do not find this can have confused involved does not exempt him from full
or mislead the intermediate court as for the responsibility when he nevertheless acted while
required degree of guilt before the principal aware this might be a possible result. In a similar
question on willful murder could be answered way there exists intent as to the consequences of
yes. I remark that A’s defender at the end of the an act that the offender calculated as certain or
instructions to the jury – that is just before the that there was every probability of.[...] It is of
jury went into deliberation – asked for a course not the objective degree of likelihood that
clarification of exactly these formulations. This has to provide the basis, but the likelihood that
only caused the presiding judge to repeat what he the offender calculates.
These sentences have been confirmed by
case law. What is doubtful is how high a degree
28
Translator: (manslaughter). of likelihood is required.[…] Probably the best
29
Translator: (the jury). way to express the present state of the law is that
30
Translator: (the jury). likelihood-intent exists when the offender has

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regarded it as more probablee that the criminal of the result of harm seems. It is also recognized
result would occur than the opposite. that it can be difficult to find a single formula that
can embrace the different instances that can occur
As for intent, the court especially refers in practice. It is especially difficult to make a
sufficient demarcation to the degree of guilt that
to two decisions: The first is published in does not reach intent, but must be regarded as
Rt-1990-600 and points out: deliberate negligence or carelessness. It is
precisely here that the element of the burden of
Intent exists in different forms, see amongst proof is present.
others the explanation given in Rt-1980-979 on From the instruction of the intermediate
when a punishable consequence can be regarded court are recorded two sections. The first is:
as willfully done. The most obvious instances are
where there exists an intention, or where the “Each of the accused to be convicted
offender has regarded the criminal result as must have realized that he shot and that he
certain or there is every probability of it. Intent is did so even though he realized it as an
also found in circumstances where the offender possibility that the … affronted could be hit
has regarded such a result as a possibility, the so- and killed. If the accuseds shot to kill, that is
called dolus eventualis. The above-mentioned had intent to cause the affronted’s death, it is
decision Rt-1980-979 was based on the clear the subjective requirements to convict
presumption that intent exists when the offender them for assault with intent to kill is present.
has decided to act even though the result will be However, to convict it is not required that
fulfillment of the consequences described in the the accused acted with murderous intent. It
criminal provision. This is the essence of the so- is sufficient that they have taken into
called positive consent-theory. consideration the possibility that the shoots
What applies for intent as for consequences, would kill, and that they “took this
also applies for other elements of a criminal possibility as a part of the bargain”.
provision.
When the positive consent-theory is used in The underlinings occur in the original
practice, questions of proof will often occur. records of the court.
What thoughts the offender had and what
decisions has he made cannot be directly As the quotation shows, this statement
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 statement is presumably based on what
the crime even though intent is an element of the is called the positive consent-theory. This theory
crime. Such a determination can be regarded as expresses that for conviction it is at least required
having been made, even though the determination that the accused shot despite having considered
has not been fully clear in the mind of the the possibility of a hit and a death, and had
offender. If the court finds that the accused has accepted this possibility.
made such a decision, the court has to find that The other section that is recorded is this:
intent exists.
“You (the jury) has to find it proven
that A was aware when he fired that the shot
In Rt-1980-979 is stated: would hit one of the many persons that was
around him in the fist fight and that a hit
Intent in relation to the result of the harm with every probability would mean death.
exists in different forms. The result of harm can You have to examine the evidence and
have been intended as the object. The offender measure the accused’s situation on the basis
can have been regarded it as certain or that there of his knowledge at that time.”
was every probability of it. And the offender can
have regarded it as more or less possible. In the The choice of wording shows that the
latter position a demarcation is necessary. statement was especially pointed at defendant A.
Amongst those formula developed by theory, I point out that he acted under different
exists dolus eventualis pursuant to the so-called circumstances than the other persons accused,
positive consent-theory. In brevity the idea and this fact invariably must influence the
behind this latter formula is that intent exists valuation of the evidence. I regard the statement
when the offender has decided to act even if the partly as a tightening up of the requirement of the
result might happen. However, it is only on the positive consent-theory, and partly a request to
theoretical plane that such a formula exists as the jury to be very careful when evaluating the
pure jurisprudence. In practice it will be mixed evidence.
with the element of the burden of proof and the Those sections, which are quoted, brought
requirement of degree of convincing-strength along a request for clarification from attorney
depending on how near or remote the possibility Feydt as defender of A, of attorney Sellinger as

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defender of B, and of the District Attorney. This The defense attorney has emphasized
resulted in the following recording: the latter and refers to American caselaw,
“On the request for clarification from especially the Grokster case, which now is
attorney Freydts the presiding judge on appeal before the US Supreme Court.
remarked that at the time of firing it was not Grokster was acquitted by the Federal
required there was every probability that the District Court and the Court of Appeals. The
shot would be deadly.
On the request for clarification from
courts especially pointed out that the
attorney Selinger the presiding judge software was not illegal, that use of file
remarked that it is sufficient there is a real sharing-applications is not illegal and that
possibility that the shot could hit and in that one cannot control what is happening.
case kill. But the accused had to be aware of It is important to remember that file
the possibility and taken the consequence as
part of the bargain. sharing-applications are not in themselves
On the request from the District illegal, nor is file sharing as long as it
Attorney the presiding judge added as a happens with material that is not protected,
further clarification that the offender to be or consent is given by the property owner, or
convicted for knowingly attempting to
murder he must have taken the possible
pursuant to the exceptions in §12. What the
death-result as part of the bargain.” American courts have considered is whether
the producers of the software, and the
For me it is obvious that especially the last service-supplier [ISP] are responsible for the
clarification puts everything in order. I will not use of the software. This question so far has
comment on the two other clarifications. To me
they give elements for the total evaluation the been answered “no”. What we derive from
jury had to make, and that in any case they the decisions is that if the companies had
cannot be to the disadvantage of the two knowledge of illegal acts then they had a
accused. duty to intervene and stop the illegal acts.
From the defense side it is noted that the
presiding judge has used the expression of taking
The court holds as previously mentioned
the result of the harm “as part of the bargain” that one cannot treat the decisions referred
without making it clear what that meant. The to and the accused’s acts in a vacuum. His
response is to say firstly, pursuant to the record acts have to been regarded in relation to his
before the intermediate court, that the defending knowledge of the environment, his own use
attorneys did not especially request a clarification
of this expression. This must mean that they – of file sharing and his consent to this and the
evaluated on the basis of the production of fact that he actively recruited new users to
evidence – did not find a need for it. Neither can I the hubs.
see that the expression as used and with the given As for the accused, the court points out
clarifications could lead to misunderstandings.
that there exist facts other than those in the
decisions which are referred to above. There
The court now deals with the questions
is the fact that the criminal act took place
related to the present case. The accused has
when the accused was aware of it. Further,
claimed that Jazzhouse was established with
the facts are different than for others who
the aim to keep an environment from IRC.
offer access to the Internet, for example
He has admitted he owned this hub. Lushlife
research environments, broadband providers
and Jazzgrove were operated by the accused
etc. In those situations the intention of the
as a friendly turn on a server that he had
file sharing is to share material that one has
access to. He has himself described that he
the rights or consent to share. This was not
himself was only a “guard” and that his task
the case in the present case where the overall
was only to provide that the servers was
purpose of the hubs was to share copyright-
functioning. He used the hub as a chat-
protected material without the consent of the
channel to B, his fiancé. In addition, it has
property owner. The defendant has to have
been emphasized that one operating the hub
been aware that file sharing in all likelihood
does not have any possibility to see which
would be the result when he started up the
files are shared between the logged-on users.
hubs. The accused’s admitted fear of
Thus, he had no possibility to control which
intrusion from American record producers,
files were shared.
his statements that “file sharing is legal in

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Norway” and “nobody cares about a small in Italy. The provision in §12 of the penal
jazz hub” leave no room for doubt that he code must be compared with the provisions
knew that the hubs would be used for illegal in Chapter 8 of the Copyright Act and the
file sharing, that he had considered it and foreign country rule. In this connection is it
that he accepted it. Thus, he fits nicely into §12 first para. subsection c which has to be
what case law and theory regards as intent. used. Breach of copyright etc. is punishable
The defendant himself has explained in most of nations in the world. The act,
that he belonged to an environment where aiding to breach the Copyright Act, has been
the interest in jazz was the center. However, done in Norway and the act is therefore
when one looks at the kind of music punishable.
defendant had on his computer, the The next question is whether the
conditions required of the users (at least x “ehandelsloven”31 §16 and the E.U. E-
GB for sharing), the conversations defendant Commerce Directive 2000/31/EF of 8 June
has had with others, defendant’s actions in 2000 has to be used. The provisions are as
recruiting new users, his “helpdesk”-service follows:
and so on, the accused’s explanations lose
their trustworthiness. It is obvious that §16. Exemption from punishment for certain
defendant has operated more than just as a transmission and access services.
“guard”. An information society service that
The court holds that it has been proven transmits information in a communications
beyond any doubt that the accused had a network on behalf of a recipient of the service is
very active part in the operation of the actual not criminally liable or liable for damages for the
content of the information transmitted, if
hubs. It is the opinion of the court that his a) the service does not initiate the
high level of activity cannot alone be transmission,
attributed to his wish of having b) the service does not select the recipient
correspondence with his fiancé and other of the transmission, and
friends, but also has been based on a desire c) the service does not select or modify the
information contained in the transmission.
to preserve the operation and achieve new Transmission pursuant to first part includes
users. In the eyes of the court, the case at the automatic, intermediate and transient storage
hand fits what Andenæs describes: “It can of the information transmitted, if
happen that his role has been such an a) the storage serves the sole purpose of
carrying out the transmission and
important part of the preparation and has b) the storage is not stored for longer than
been entangled in the act to such a degree is necessary for the transmission.
that it is sensible to regard his passivity as The provisions in first and second parts
aiding.” The court finds it fully proven that cover similar services if the service consists of
the accused was fully aware of what he was access to a communications network.
doing and that he knew the file sharing
software was misused for sharing files that The Department commented on the
were protected material. He wished the provision in Ot.prp.32 no. 4 (2003-2004):
result even though he knew it was illegal.
As for §16. Exemption from punishment for
This has to be regarded as aiding pursuant to certain transmission and access services
the law. Thus, defendant objectively and This provision is new and carries into effect
subjectively can be convicted. Article 12 of the E-commerce Directive. This
The next question, however, is whether provision regulates such services that are called
pure transfer-communications (mere conduits),
there exists any other provisions that make see Chapter 3.2.
defendant’s acts exempt from punishment. Pursuant to the first paragraph, a service
The first question is whether Norwegian that transmits information for a recipient of the
penalty law can be used for the claims in the service is exempt from criminal and civil liability
present case. As previously mentioned, the for the content of the transmission if it fulfills the
requirements of letter a to c.
file sharing takes place between the users,
not via the hubs. This can indicate that a
31
user in the U.S. downloads files from a user Translator: the E-commerce Act.
32
Translator: White Paper.

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The Norwegian translation of Article 12 no. if it is done while waiting for available
1 of the Directive implemented in §16 first para. transmission capacity. The requirement of
of the bill is somewhat misleading. The transient storage distinguishes services regulated
Norwegian translation states that “a service that by §17.
offers an information-public-service which only Pursuant to letter a the storage must
consists of transmitting information given by a exclusively serve the purpose of transmitting of
service-receiver in a communication network or information. If the storage has other purposes is it
of giving access to the communication possible that the storage is embraced by §§17 and
network…”, while the Danish translation states 18 of the bill. An example is that access to the
that “by delivery of an information-service (-) information may be given during the storage so
which is offered by a service-receiver, or offering that permanent copies can be made.
access to a communications network…” The The storage shall not continue beyond what
Norwegian translation has inserted an “only” is necessary for the actual transfer, see letter b. It
which does not occur in either the Danish or the is not possible to give a closer indication of time
English version. This “only” can be as for what is “necessary” storage. This
misunderstood, and does not achieve the requirement must be related to the requirements
limitation of the exemption-provision wished for. in the second paragraph under which the storage
The Department has on this background not shall be intermediate and transient. Subsumption
included the exception in §16 first para. in case of doubt must be made pursuant to a total
According to letter a the transmission of consideration, where the purpose and other solid
information may not begin with the service considerations are part.
provider. If the service provider is the initiator of […]
the transmission of the information there exists Pursuant to the third paragraph the
no exemption from punishment. The difference provisions in the first and second paragraphs
between this requirement and the requirement in apply similarly to service providers if the service
first para. letter c, is that here is it the service consists of offering access to a communications
provider itself that sends the information, which network. This covers service providers that offer
is not the case pursuant to letter c. access to the Net, and the servers, routers, etc. on
According to letter b the service provider which the information is transmitted.
may not select the receiver of the transmission. It
is in Chapter 7.3 more narrowly discussed In the present case it is certain that
whether a service provider is still covered by the
exemption from punishment if it offers a defendant did not initiate the transfer, he did
selection of receivers on the basis of, for not himself select the recipient of the
example, demographical data. transmission and he did not select or modify
Letter c lays down the requirement that the the information being transmitted. This must
service provider itself must not select or modify
the information being transmitted. A service
objectively be interpreted to mean that a
provider that makes only necessary changes person that re-communicates information on
because of the format of the original in order to the Internet, whether paid or not, is exempt
transmit the information is not regarded as having from punishment.
changed the information being transferred. Such The issue at hand is a question of
an adjustment does not change the content being
transmitted, only how it is presented. Whether the liability for aiding and thus there is a
conversion is intended by the receiver, who requirement of intent, see decision from
otherwise could not get access to the information, Borgating Intermediate Court in RG-2003-
or by the conversion the transmission becomes 1268, which states:
more secure or efficient, does not influence this
consideration. A service provider who adds his
There is not disagreement that at least a part
own content during the conversion to another
of those pictures and video-films that in 1998–
format, deletes part of the content, or edits the
1999 were offered to Tele2’s “news”-subscribers,
content of the text, may not be embraced by the
and which are mentioned in indictment, are of
provision, see Chapter 7.3.
pornographic character. §211 of the Penal Code
Pursuant to second paragraph a service
punishes the negligent dissemination of such
provider as mentioned in para. one is also
material. The essential question is whether by the
exempted from criminal and civil liability even if
E.U. Directive on E-Commerce Norway is
the transmission includes the automatic,
obligated to refrain from punishing one who
intermediate and transient storage of the
negligently communicates such illegal material.
information transmitted, if the requirements in
The E.U. Directive 2000/31/EF of 8 June
letters a and b are fulfilled. The requirement of
2000 (Directive on Electronic Commerce) should
intermediate storage must be regarded as drawing
pursuant to article 22 be carried into effect in
the line at instances where the information is
each member state before 17 January 2002.
stored on a more permanent basis. Intermediate
Norway has not complied with the deadline, but
storage will typically be covered by the provision

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it is bound by public international law to den verksamhet som består i enbart


implement the directive into Norwegian law. The vidarebefordran eller cachning och får därför inte
lack of implementation, however, does not seem utnyttja de undantag från ansvar som har
to have significance for the present case on the fastställts för denna verksamhet.
issue of use of law. Pursuant to §1 second part of
the Penal Code, the criminal law in Norway (44) A service provider who deliberately
applies with “the limits that follow from collaborates with one of the recipients of his
agreements with foreign states or of public service in order to undertake illegal acts goes
international law.” Thus the question is what beyond the activities of « mere conduit » or «
limits exists on allowing punishment of electronic caching » and as a result cannot benefit from the
dissemination of pornographic material pursuant liability exemptions established for these
to the directive on electronic commerce, activities.
especially Article 14 and Article 15. The
prosecutor in the present case has documented a (44) En tjenesteyder, der bevidst
extensive consulting-statement of 18 February samarbejder med en tjenestemodtager om at begå
2003 form the Justice Department, where the ulovlige handlinger, overskrider grænserne for
Justice Department articulates on “The Provision ren videreformidling eller caching, og den
on Exemption from Liability for Networks in the pågældende kan som følge heraf ikke omfattes af
new law on E-commerce” and where the issue of de ansvarsfritagelser, der er fastsat for denne
the requirement of guilt in connection with an form for aktiviteter.
eventual liability to punishment is given
considerable attention. It is further explained that As shown, there is a limitation of the
in a proposal to amend the E-commerce Act there
is made a requirement of intent to punish a
exemption from liability if there is a
service provider that illegally store information. collaboration between one that operates an
This is the reason the actor in the present case has information-society service and one (or
asserted a claim of acquittal. more) user(s). The court has to consider the
The intermediate court reluctantly comes to question of what is covered by
the conclusion that the E.U. Directive, together
with §1 second para. of the Penal Code, implies “collaborate”. It follows as a premise for the
that in the present case only purely intentional Directive that the intention was not to hold
acts can be punished. However, as the prosecutor liable service providers that only carry or
in the present case and under these special store material. But it is a clear premise that
circumstances has claimed acquittal, the court
leaves unresolved a discussion of this question.
those who intentionally offer net-capacity or
The court accepts the claim of an acquittal. storage-capacity to be used for illegal use of
The decision is unanimous. the Internet shall be prevented.
As previously mentioned, the concept of
The provisions must be interpreted in intent in Norwegian law embraces only one
connection with article 12 of the E.U. who agrees with the offender that a criminal
Directive that grants exemption from act shall be committed. In addition, one who
liability. However, this must be interpreted without the knowledge of the criminal keeps
in light of the preamble which gives the guard outside the house where the
background for the provisions. In the present housebreaking takes place is regarded as
case is it especially number 44 that is collaborating with the criminal and having
important. The Norwegian translation states: intent and being liable for aiding in the
crime.
[A service provider who deliberately Defendant in the present case has Comment [t1]: Henrik: This paragraph should
collaborates with one of the recipients of his explained that he operated as a “helpdesk” be left in the original Norwegian (indented and small
service in order to undertake illegal acts goes type), as the court then quotes three different
beyond the activities of « mere conduit » or « and helped users with technical problems. translations (including the official English
caching » and as a result cannot benefit from the Thus, in a legal sense he must be regarded as translation) in the next three paragraphs.
liability exemptions established for these collaborating with the users.
activities.] Based on the above the court finds that
defendant has acted with the required intent.
The Swedish, Danish and English He was fully aware of what happened, he
versions state: desired the result and he thus cannot be
embraced by the rules on exemption from
(44) En tjänsteleverantör som avsiktligt
samarbetar med någon av mottagarna av hans
liability in the E-commerce Act. Thus, he
tjänst för att begå olagliga handlingar går utöver

Direct connect-oslo_ENG – page 23


Unofficial Translation of the “Direct connect-Oslo” case

can be convicted for the remaining claims of 120 days of community service over 150
the charge. days. If the community service is not
fulfilled, the alternative penalty will be 120
The Fixing of the Sentence: There exists days of imprisonment. This shall be reduced
no case law regarding punishment for by the 3 days the accused was in custody.
breaking the Copyright Act via the Internet. The convicted defendant has agreed to
The prosecutor has presented a claim of a community service.
combination of unconditional imprisonment Confiscation: There has been presented
and an order for community service. The a claim of confiscation pursuant to §35
court emphasizes that there are an extensive second para. of the Penal Code, compare
number of files that have been shared and §37 first para. The court finds the condition
that it has happened on a very professional for confiscation is present because the
scale. In the direction of mitigation there is machines have been used as tools to commit
the fact that the accused has not previously the crime. There will be passed judgment as
been punished or violated the law. claimed.
Furthermore, he has not had any economic §12 first and second para. of the Penal
gain from the criminal acts except that he Code, compare §1, §62 first para., §57-§59
has not paid for the music that he himself of the Copyright Act and Chapter 6 of
has downloaded. Regulations to the Copyright Act of 21
The court finds that even though illegal file December 2001 nr. 1563 have been used.
sharing is in the process of becoming a Judgment will be pronounced when the
social problem, there has been done only time-limit in §42 of the Criminal Procedure
economic harm to record and movie Code has passed. Immediately after the
producers etc. Nobody else’s interests have court adjourned the court held the first
been hurt and no persons have been put in conference on fixing the sentence. However
danger. In the eyes of the court it will in the it was necessary to have several conferences
present case be too harsh to sentence the because of the extent and complexity of the
defendant to unconditional imprisonment. case.
The court has determined the sentence to be The judgment is unanimous.

Direct connect-oslo_ENG – page 24