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Unofficial Translation of the Danish case IFPI vs. DMT2 – so-called “thepiratebay.

org” case

This unofficial translation is available from http://www.geocities.com/hssph/misc.html#Cases

Translation by Senior Researcher Henrik Spang-Hanssen


Research website www.geocities.com/hssph

Decision of 5 February 2008


from
Bailiff's Court of Frederiksberg
(Copenhagen, Denmark)

Citation:
IFPI Denmark v. DMT2 A/S – Frederiksberg Fogedrets Kendelse, 5 Februaray 2008 - FS 14324/2007

[Original decision in Danish can be found through Computerworld DK at


<http://www.computerworld.dk/art/44102?a=newsletter&i=1592> or
<http://www.computerworld.dk/modules/davinci/getfile.php?id=18886&attachment>]

Bailiff's Court of Frederiksberg (Copenhagen)


Howitzvej 32
2000 Frederiksberg
Phone (+45) 3814 5400
Fax (+45) 3524 8458
www.Frederiksberg.dk
2. Foreningen af danske Videogramdistributører
[Association of Danish Video-distributors] as
agent for Buena Vista A/S et al. *5
*11 Transcript of records of the court 3. Gyldendalske Boghandel Nordisk Forlag A/S
4. JP/Politikens Hus A/S

On January 29, 2008 the Bailiff’s court held hearings v.


in courtroom Y, Blegdamsvej.
DMT2 A/S2
On the bench: Duty judge Poul Bisgaard-Frantzen.
Attorney-at-law Jakob Plesner Mathiasen represented
Case: FS 14324/2007 claimants.

Attorney-at-law Morten Agervig Helles represented


1. IFPI Denmark as agent for Aller International defendant.
A/S et al. *4

1 2
Number after a bold “*” state the page of the original deci- Translator: In Denmark, the company is also called
sion. “Tele2”. From 12 July 2007, it is part of Telenor.
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Unofficial Translation of the Danish case IFPI vs. DMT2 – so-called “thepiratebay.org” case

The following documents were presented: Request for


an injunction, statement of defiance, reply, exhibits 1- The parties pleaded the case.
21 & A-B.

The claimants have argued in accordance with the


Claimants laid the following claims: claims made in the briefs, amongst others:

1. Defendant should be prohibited from contributing to that from the website thepiratebay.org is given public
others people through the website www.thepiratebay. access to sound and film and literarily works over
org making access and copying sound fixation and which the claimants have copyright,
film and literarily works over which the claimants
have copyright. that this accessibility imply a independent public pres-
entation, see Article 2 section 3 subsection 3 of the
2. Defendant should be ordered to take the necessary Copyright Act,
measures, which will prevent access for defendant’s
customers to the website of thepriratebay.org and sub- that the claimants not have given permission to this
sequent sub-pages and sub-domains. publication,

Defendant made claim that an injunction should not be that this publication is in violation with the claimants’
issued. copyrights

that the users’ downloading of digital copies of sound


The case and evidence from exhibit was presented for and film and literarily works, offered through the web-
the court. site thepiratebay.org, constitute an illegal copying,
pursuant to article 2 of the Copyright Act, see Articles
Expert witness, Kristian Løkkegård, informed that 11 section 3, 66 sections 1 and 2, 67 section 1 and 2.
he works as chief technology officer at DtecNet Soft-
ware ApS in Denmark. The company develops soft- that defendant contributes to the illegal copying and
ware, sell licenses and trace amongst other illegal ac- access by transmitting the illegal accessible material,
tivities on the Internet. Presented with letter of 24
January 2008 (exhibit 18 page 1, section 1-6) from that the exception in article 11a of the Copyright Act
managing director (CEO) Erik Testmann, Contest A/S, does not embrace this transmission,
Denmark to Johan Schlüter *6 Law Firm I/S, the wit-
ness declared him in agreement with the content. since article 11a of the Copyright Act presuppose that
copying is done on basis of a legal original, see article
By use of a piece of software, for example Azureus 11 section 3, *7
(shown in exhibit 5) a user can open torrent files
(bit.torrent.com) which is stored on www.thepiratebay. that pursuant to the remarks made to the E-commerce
org. Data in a torrent file is on its face of no value for Act, does the rules on freedom from responsibility in
the user. Azureus support bit.torrent.com, which can this Act not embrace preliminary remedy [~ US: TRO
be compared with a communication file. When Azer- (temperate restraining order)] including injunctions
eus or another application that support bit.torrent.com granted by a bailiff court, see decision from Østre
is installed, the user by a click on a link to Landsret [Court of Appeals for Eastern District]
www.thepiratebay.org download requested material Docket no. B-1677-033 (exhibit 14), affirmed by Deci-
from another user. The user is automatically trans- sion of the Supreme Court published in [Danish Case
ferred to the application, which fetches the file. Reporter] UfR 2006.1474H,4

www.thepiratebay.org only consists of links to mate- 3


rial that are offered by other users. When first the us- Translator: Partly published in decision mentioned in next
ers have found each other, they can communicate and footnote.
4
Translator: TDC Totalløsninger A/S v. IFPI Danmark as
exchange material without the use of www.thepirate- agent for Arcade Music Company et al., UfR 2006.1474 H
bay.org. (Supreme Court of Denmark, 10 February 2006 - Docket
no. 49/2005) (Plaintiff was service provider for A, which
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Unofficial Translation of the Danish case IFPI vs. DMT2 – so-called “thepiratebay.org” case

thus article 14 of the E-commerce Act does not rule that there is no distinction between blocking access to
out that a ban can be made against defendant’s acts, the website www.thepiracybay.org and blocking the
which violate the claimants’ copyrights, access to the websites www.allofmp3.com5 (exhibit
15) and www.mp3sparks.com6 (exhibit 16),
that there is proportionality between the injunction
claimants ask for and the consideration to the defen- that the transmission of copyright protected material is
dant [US: balance of equities tips sharply in the mov- done through defendant’s net *8 even if the data-
ing party’s favor] transmission is done between the users or from a web-
site of the users, see exhibit 18,
that the website www.thepiratebay.org is the necessary
connecting link between the users that makes it possi- that transmission of copyright protected material
ble to make accessibility and copying material be- though defendant’s net constitute a temporary copying
tween the users, in violation with claimants’ rights, see article 8(3) of
European-Parliament’s and Council’s Directive
that the activities on the website are illegal, 2001/29/EF, [Danish] Supreme Court Decision pub-
lished in UfR 2006.1474 H, Copenhagen Bailiff’s
since the claimants have not given permission to the Court’s decision of 25 October [Translator - The fol-
publication and copying that happens through the lowing seems lost in the court’s transcript: “2006 in
website, Docket no. F1-15124/2006 (exhibit 15) and Frederiks-
berg Bailiff’s Court’s decision”] of 15 August 2007 in
since the users’ downloading of files through the web- Docket no. FS 7509/2007 (exhibit 16) and EU-
site is illegal copying in violation of article 2 section 1 Commission’s Report of 30 November 2007 (exhibit
of the Copyright Act, 21), and

since the users’ accessibility of files through the web- that an injunction is the relevant and effective measure
site is a publication in violation of article 2 section 1 to prevent those violations of the claimants’ rights
of the Copyright Act, through website www.thepiratebay.org from happen-
ing,
since thepiratebay.org by its deep links perform an
independent publication in violation of article 2 sec- that pursuant to precedent [case law], including Bail-
tion 1 of the Copyrights Act, and contributes to the iff’s Court of Copenhagen’s decision in a total similar
users’ illegal copying, also in violation of article 2 sec- case F1-15124/2006 (exhibit 15) and Supreme Court
tion 1 of the Copyright Act,
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since the whole purpose of the “pirate” bay is to ex- Translator: IFPI Denmark as agent for Aller International
change piracy-copies, A/S et al. v. Tele2 A/S (Bailiff’s Court of Copenhagen, 25
October 2006 - Docket no. F1-15124/2006)(The court is-
that by blocking for the access to the website sued an injunction against ISP's contributing to and giving
www.thepiratebay.org, the defendant’s customers will access to Russian www.allofmp3.com, which distributed
illegal music). On 22 November 2006, Tele2 decided to
be hindered from making accessible and copying accept the court order and permanently block allofmp3.com,
copyright protected material in contravention of the Robert Vanglo, Tele2 lukker permanent for Allofmp3.com,
claimants’ rights, Computerworld-DK 22 November 2006 at
<http://www.computerworld.dk/art/36684?a=newsletter&i=
763>.
6
had two servers with amongst others illegal copyrighted Translator: IFPI v. Tele2 (Bailiff’s Court of Frederiksberg,
music. The Court held the plaintiff’s transmission was a 15. August 2007 – Docket FS 7509/2007)(Similar decision
temporary illegal copying. It was not disproportional that concerning mp3sparks.com [which is like Allofmp3.com
plaintiff would have to disconnect A’s servers. As A did not operated by Mediaservices, Inc, a company founded in 2000
have static IP-addresses, the injunction should only cover in Moscow, Russia]), Mikkel Aabenhus Hemingsen,
subscribers, which at a specific given time had been issued Fogedretten beordrer Tele2 til at blokere for mp3-site,
certain given IP-addresses. The parties agreed that plaintiff Computerworld-DK, 16 August 2007 at <
was free from responsibility pursuant to article 14 of the http://www.computerworld.dk/art/40824?a=rss&i=0 > and
Danish E-commerce Act). Wikipedia at < http://en.wikipedia.org/wiki/AllOfMP3>.
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Unofficial Translation of the Danish case IFPI vs. DMT2 – so-called “thepiratebay.org” case

decision of 10 February 2006, published in UfR terial from peer to peer, including via/over the website
2006.1474 H, there shall be issued an injunction in this www.thepiratebay.org,
case.
that the claimants has not lifted its burden of proof that
Claims pursuant to the Civil Procedure Code: there is done unlawful conduct through defendant’s
customers access to www.thepiratebay.org, much less
that the acts upon which an injunction is requested are on that website at all,
clearly in violation with the claimants’ copyrights,
that defendant has shown that those acts described by
that the illegal activities upon which is sought hin- the claimant are not unlawful, and thus the acts cannot
dered otherwise is expected to continue, be prohibited, wherefore no injunction can be issued
against those acts,
that the general law on penalty and damages do not
give the claimants sufficient protection, and at this that the requirement for issuing an injunction are lim-
place should be noted, that the legislator at the time of ited by one by law fixed principle of proportionality,
tighten up the rules of injunctions by amendments to which in this case imply that there shall not be issued
the Civil Procedure Code expressly in the comments an injunction because of the substantial disproportion
has stated that the requirements for injunctions nor- between the interests of the claimants and the harm
mally will be fulfilled in cases concerning violations and nuisance, which an injunction will cause defen-
of immaterial rights [copyrights], see remarks to arti- dant.
cle 642 of the bill.
In addition, the defendant has during the oral proceed-
ings waived the right to claim security if the court de-
The defendant has argued in accordance with the cides to issue an injunction.
claims made its Answering brief, amongst others:

that the website www.thepiratebay.org does not con- DECISION


tain files of any kind that can be downloaded,
The court finds it undisputed that the website
that accessibility to the claimants’ to sound and film www.thepiratebay.org works as index and search-
and literarily works is done through peers, engine, which allows users of the website to get acces-
sibility to files from each other.
that it is not possible for defendant to shut off the ac-
cess to those in the case involved peers, On basis of the production of evidence and argumenta-
tion, the court holds that an overwhelming part of the
that blocking the access to www.thepiratebay.org for material exchanged through the website by the users
defendant’s customers will have no influence of such are protected by copyrights, which are administrated
customers’ ability to download those in the case in- by the claimants, and that the claimants have not given
volved files from those peers, where the protected files permission to the materials publication and accessibil-
are stored, ity. In addition, it is substantiated that the use of the
website – which according to the information-website
that no accessibility to sound and film and literarily www.alexa.com rank number 23 of the most popular
works take place from www.thepiratebay.org, *9 websites in Denmark – has a certain diffusion in Den-
mark.
that those acts, upon an injunction is requested, do not
violate any of the claimants’ rights, The exchange of copyrighted protected files, which is
taking place between users of the website – without
that no wrongful activity is taking place at the website the permission of the claimants – thus constitutes a
www.thepiratebay.org, violation *10 of the sound and film and literarily
works that the claimants administrate and owns the
that there is done no copying and thus no temporary right to, see article 2 section 1 of the Copyright Act.
copying in defendant’s routers during the transmission
of downloads of for example copyright protected ma-

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Unofficial Translation of the Danish case IFPI vs. DMT2 – so-called “thepiratebay.org” case

The court holds that the website www.thepiratebay.org the Copyright Act. The fact that www.thepiracy.org to
works as a special constructed and necessary search- a certain extent – even though to a small degree – of-
engine for wrongful distribution of copyrighted pro- fers access to legally file-sharing between the websites
tected works. Further, the court finds the function of users, cannot legitimize the wrongful acts.
the website makes copyrighted protected works acces-
sible for the public in a manner that must be consid- Thus, the court finds DMT2 A/S are making acts that
ered with that of public performance, see article 2 of violets claimants’ rights, see article 642 section 1 sub-
the Copyright Act, even though www.thepiratebay.org section 1 of the Civil Procedure Code. In addition, the
not by itself has uploaded copyright protected material court finds the other requirements pursuant to article
on the net. In this connection, the court finds it impor- 642 of the Civil Procedure Code for issuing an injunc-
tant that the website through its search-function is pro- tion is fulfilled. Moreover, the court has not been pre-
grammed with direct links to copyright protected ma- sented with facts that imply an injunction will cause
terial hosted by the website’s users, see UfR DMT2 A/S harm or drawbacks of a kind that would be
2001.1572 V.7 in obvious disproportion to the interests of the claim-
ants for an injunction, *11 see article 643 section 2 of
It is undisputed that customers at telephone-company the Civil Procedure Code.
DMT2 A/S have access to website www.thepirate-
bay.org and subsequent sub-pages and sub-domains. As it can be presumed that there exists no risk for
DMT2 A/S getting liable to its customers or third per-
Pursuant to article 2 section 2 of the Copyright Act sons by obeying the injunction, see UfR 2006.1474 H,
any direct or indirect, temporary or permanent, fully or and as DMT2 A/S has waived a claim of security if an
partly production in any way or any form is regarded injunction would be issued, the court accept the claim-
as reproducing copies. All form of copying is em- ants’ petition of an issuance of an injunction without
braced by article 2. security.

The telephone-company’s provision of access to ORDER


www.thepriratebay.org constitutes a transmission
through the telephone-company’s net of copyright pro- DMT2 A/S must not contribute to others’ publication
tected works. The court finds that DMT2 A/S’s trans- and copying through the website www.thepiratebay.
mission of the works constitutes a temporary produc- org of sound and film and literarily works over which
ing of copies of the type, which is embraced by article the claimants have copyright.
11a of the Copyright Act. It is without any signifi-
cance that the copying is only temporary, since the DMT2 A/S shall take the necessarily measures to pre-
reproduction is not done legally, see UfR 2006.1474 vent access for DMT2 A/S’s customers to Internet
H, Copenhagen Bailiff’s Court’s decision of 25 Octo- website thepiratebay.org and subsequent sub-pages
ber 2006 in Docket no. F1-15124/2006 and Frederiks- and sub-domains.
berg Bailiff’s Court’s decision” of 15 August 2007 in
Docket no. FS 7509/2007. Case closed.
Court adjourned.
Therefore, the court finds that DMT2 A/S by giving its
customers access to www.thepiratebay.org contributes Poul Bisgaard-Frantzen
to violate de copyrights that is administrated by the Duty judge
claimants, see article 2 section 2, confer section 1 of
[Translator: Even though defendant blocks the Swed-
ish website thepiratebay.org, it has decided to appeal
7
Translator: KODA et al. v A, UfR 2001.1572 V (Courts of the decision. Defendant wants an test case decision on
Appeals - Western Division, 20 April 2001 - Docket no. the question of whether internet service providers in
KB-afd. B-1943-99) (15 year old A made a website with Denmark has to block. In this matter it is supported by
direct links to Danish and foreign music, which either was other Danish ISPs, Rune Pedersen, Tele2 går i retten i
stored on foreign serves or had been uploaded by himself. Pirate Bay-sagen, Computerworld DK, 11 February
The court found he unlawful had made the direct links and
he was ordered not to copy or contribute to copy illegal mu-
2008 at
sic on the net. Plaintiffs awarded damages of 100,000 <http://www.computerworld.dk/art/44198?a=newslett
DKK). er&i=1605>.

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