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Unofficial Translation of the “Norwegian Napster” case

Translation by Senior Researcher Henrik Spang-Hanssen

Decision of 27 Janyary 2005


from
Supreme Court of Norway
Citation: HR-2005-00133-A or Rt-2005-41

Docket No. 2004/822

On the Bench: Gussgard, Oftedal Broch, Mitsem, Bruzelius, Aasland..

TONO, NCB Nordisk Copyright Bureau, EMI Norsk AS, BMG Norway AS, Sony
Music Entertainment Norway AS, Universal Music AS

Help-intervener:1 IFPI Norge


vs.

Frank Allan Bruvik d/b/a Napster.no

Copyright law: Claim for damages pursuant to §552 of the Copyright Act for making links on the
Internet to copyrighted music files in mp3-format. The right-owners sued for 500,000 NKR3 in damages.
The Supreme Court did not decide whether the making of links to music files should be regarded as
published, see §2 of the Copyright Act. However, the linking was regarded as contribution in respect of
damages for the uploaders illegal publishing of the music, see §55 of the Copyright Act, see also §54
subsection a and d, see §45. Damages was rewarded for the loss of the record-producers and the artists
that are embraced by §58 of the Copyright Act and directions §6-1 to the Copyright Act. The Supreme
Court affirmed the first instance’s decision of awarding 100,000 NKR in damages, but not there was no
order as to costs.4

History: 22nd January 2003 Sør-Gudbrandsdal tingrett5 (Citation: TSGUD-2002-203) – 3rd March 2004
Eidsivating lagmannsrett6 (Citation: LE-2003-482).

1
Translator: Similar to Amica Curie in US.
2
Unofficial translator of §55 (1998): Damages can be claimed for injury or loss done in violation of §54 or §49 first
part pursuant to the ordinary rules on damages. If the violation of the right of the right-owner or performer or the
model is intentional or gross negligent, then the court furthermore can award a sum of money to compensate non-
economic loss. Even if the offender has acted in good faith, can the offended claim the net-profit of the illegal act,
no matter the size of the damage.
3
≈ $ 76,920.
4
Thus, each party had to bear his own costs.
5
Local first instance court.
6
Intermediate court. Unofficial English translation at <www.linksandlaw.com/decisions-135-napster-norway.htm>.

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Unofficial Translation of the “Norwegian Napster” case

(1) Judge Gussgard: The case deals together, defendant has earned 500
with a claim of damages pursuant to §55 NKR.
of the Copyright Act caused by making
links on the Internet to copyrighted (5) It is not disputed that the music
works – music files in mp3 format. Napster.no gave access to was illegal
uploaded on the Internet. The owners of
(2) On October 4 2000, the domain the rights had not given their consent,
name napster.no was registered. The and the material is covered by the
owner was Frank Allan Bruvik d/b/a Copyright Act.
Napster.no. The basis of the website was
that the users informed of web-addresses (6) In Fall 2001, the Norwegian
to music files, which addresses was branch of record companies association
placed on napster.no. On the homepage – IFPI Norge – reacted against
was a link named “Add an mp3” where defendant’s business on the Net.
a user could type amongst others artist, Defendant was advised that the business
title and the web-address to the actual was illegal and punishable. Defendant
music file. By help of a software did not agree. However, after consulting
application – a “script” – would with several lawyers, he deleted the
automatically be generated a new site music files in November 2001.
under napster.no with a link to the music
file. From time to time the script did not (7) TONO, NCB Nordisk Copyright
work, and links would then be made Bureau, EMI Norsk AS, BMG Norway
manually. The case covers the period AS, Sony Music Entertainment Norway
August through November 2001 during AS and Universal Music AS filed a
which the website contained in average lawsuit against defendant at the court of
links to 170 music files. All music files Sør-Guldbransdal. IFPI Norge and
was stored on foreign servers. Antipiratgruppen i Norge participated as
help-interveners.8 Plaintiffs claimed
(3) After the links was made, the 500,000 NKR in damages for the illegal
website could be used to downloading linking to the music. The court of first
of music in mp3 format from the instance decided the case on January 22
Internet. Mp3 is a designation of a 2003 (TSGUD-2002-203) with the
compression-technique that makes it following judgment:
quicker to download a file than in the
original format. When a user clicked on “1. Frank Allan Bruvik d/b/a
one of the links, he was offered the Napster.no shall in damages pay the
choice of either play the music plaintiffs 100,000 NKR + interest,
immediately or store it on his own for the present 12 percent, from
computer for later use, or cancel the respite for payment until payment is
process. done, see §3 first para of the Act on
Delay-Interest.
(4) Also, Napster.no had a search- 2. No costs is awarded.”
function that allowed the users to
inquire whether it was possible through (8) The court of first instance held
the website to achieve the music that links such as those used by Napster.no –
was wanted. The use of the website was often called direct links or deep-links –
free. It contained some advertising. If a imply public presentation in the sense of
user clicked on one of these, defendant the Copyright Act, and that the linking
would gain 1 NKR7 per click. All of he music files was a violation of the

7 8
≈ 0.15 cents. Translator: Similar to Amica Curie in US.

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Unofficial Translation of the “Norwegian Napster” case

Copyright Act. Defendant had in the publication. The illegal act that the
eyes of the court “at least” acted uploaders did by putting the music on
negligent, and was liable to pay the Internet, was in the eyes of the
damages pursuant to §55 of the appeal court finished and fulfilled, since
Copyright Act. it was uploaded. As the provision in §54
of the Act was formulated, the existed
(9) Defendant made a request for no contributory liability; the provision
being allowed to appeal directly to the was not worded as a “condition-
Supreme Court, which request was not delinquency”11. The requirement of
granted. The appeal then went to causality was not fulfilled, and appellant
Eidsivating lagmannsrett. IFPI Norge had to be acquitted.
participated as help-intervener. During
the preparation of the trial, the appellees (12) All plaintiffs have appealed the
further claimed that appellant had acted decision of the Appeal Court to the
inconsistent with the general competing- Supreme Court, with IFPI Norge
provision in §1 first para of the participated as help-intervener. The
Marketing Act – which claim had not appeal relates to the evaluation of the
been made before the court of first evidence and the use of the law.
instance. The Court of Appeal granted
permission to forward the new claim, (13) There has been presented court-
which decision was reversed by the testimony of defendant and of Cato
Supreme Court pursuant to §366 of the Bjørn Strøm on behalf of TONO. There
Civil Procure Code, see §367 and §375, has been held court hearing where
see also Rt9-2004-60, as it regarded it as expert Håkon Styri and Øivind Svendby
a new claim. from IFPI has given evidence. Both has
also made written depositions. Further
(10) Decision was handed out on has been submit evidence from the
March 3 2004 (LE-2003-482)10 with the expert in the appeal court, Erling
following judgment: Maartmann-Moe. The case presented for
“1. Appellant is acquitted. the Supreme Court is in reality the same
2. Second part of the decision of as it has been before the previous courts.
the court of first instance is Defendant has withdraw some few
affirmed. arguments that has no influence on the
3. Each party to bear his own main questions of the case.
costs before the appeal court.”
(14) TNO, NCB Nordisk Copyright
(11) The Court of Appeal held the Bureau, EMI Norsk AS, MBG Norway
links only made a reference to places AS, Sony Music Entertainment Norway
where the music already was made AS and Universal Music AS has, with
accessible for the public. The website support from the help-intervener,
could be compared with a “bulletin summarized argued:
board that contained the direct addresses
to the uploaded works”. The linking was (15) TONO administer music works
not a publication in the sense of the for Norwegian right-owners pursuant to
Copyright Act. Neither could the the Copyright Act. The right-owners
conduct be contribution of others assign their copyrights to TONO.
TONO also handles performing rights of
9 foreign right-owners through mutual
Translator: Norwegian Case Reporter
10
Unofficial English translation at
agreements with similar organizations in
<www.linksandlaw.com/decisions-135-napster-
11
norway.htm>. “tilstandsdelikt”.

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Unofficial Translation of the “Norwegian Napster” case

foreign countries. Performing of the part of §2 is only a example of what the


protected works to the public require term embrace. The linking is illegal
consent from TONO. TONIO has because there is no consent from the
handed over the right to produce and sell right-owners.
the music works to NCB. NCB
functions like a shared central for rights (19) The Supreme Court can use the
of the Nordic countries and give consent same facts as the appeal court.
to reproduction of music-works with Defendant organized the homepage and
accompanying text on records, tapes, saw to it that the net-addresses
etc. These two organizations claim suggested by the users, was made
damages pursuant to §55 first para of the directly accessible by the links.
Copyright Act, see §54 first para
subsection a. (20) The Appeal Court rightfully
described how the links functioned. The
(16) The other appealing parties are court held that they only could be
Norwegian record-producers that regarded as reference to other websites
represent all rights to their own and compared them as addresses. Others
productions and production of their have compared such links as footnotes
foreign parent companies or in books and articles. However, the links
subsidiaries. Normally, the artists has are more than that. They gave directly
transferred their rights to the producers. access to the music files to be played
The parties agree taht the record and/or stored. A simple information of a
producers had the rights to 75 percent of web-address does not give such a direct
the uploaded music works. access. Neither does footnotes give the
reader access to the work mentioned in
(17) The rights of the performing the reference. Defendant’s business can
artists and the record producers is better be compared with offering a
regulated in §42 respectively §45 of the jukeboks. The later has been regarded as
Copyright Act. The provisions does not publishing music to the public, see Rt-
give sole and exclusive right to make 1964-782.12
something available to the public, but
the protection is expanded by the The sole and exclusive right to
penalty provision in §54 first para publish a work is not a onetime right. It
subsection d of the Act, which protect also apply to a re-communication of a
all making available to the public when previous publication of the work. It is
the copies are produces in violation of has no consequence whether the users
§42 and §45. Liability for damages is have been able to get access to the
given in §55, and arguments put forward music at another web-address.
are identical for the appealing parties. It Reference can be made to the
is probable correct that only the artists Bedriftsmusikkdommen,13 Rt-1953-633,
from the EØS-area are protected, but and the Swedish Morningtondommen,14
there is no geographic limitation on the published in NIR-1980 page 258.
protection the producers have, see §58
second para, third full stop. (22) Without the links the users
would normally not be able to find a
(18) The primarily main argument is music file which was uploaded on a
that the links at Napster.no to the music computer connected to the Internet. The
files imply a making available to the
public pursuant to §2 and §54 first para 12
Translator:
subsection d. Publishing must be 13
Translator: Business-music-case.
interpretated as a term on itself. Third 14
Translator: Morning-tone-case.

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Unofficial Translation of the “Norwegian Napster” case

appeal court has not paid regard to the “1. Defendant shall pay TONO,
fact that it is first when a link is made to NCB Nordisk Copyright Bureau,
a file, that the users normally can get EMI Norsk AS, BMG Norway AS,
access to the file. Links is of vital Sony Music Entertainment AS and
importance for the use of the Internet. Universal Music AS jointly
damages determined discretionary
(23) That the links gave direct by the court, but not lower than
access to the music files – the possibility 100,000 NKR, and before two
for immediate experience of the music – weeks from the decision has been
is the appealing parties main point. served, plus interest pursuant to §3
first para, first full stop of the Act
(24) The decision of the Appeal on Delay-Interest, for the present
Court is inconsistent with the decision 8.75 percent, from the time for
of June 17 2000 from Högsta rightful payment until payment is
domstolen15 in Sweden in the so-called done.
Tommy Olsson-case, and with a Danish
decision of April 20 2001 from Vestre 2. Defendant shall pay TONO,
Landsret.16 Both courts held that links NCB Nordisk Copyright Bureau,
giving similar access to works as in our EMI Norsk AS, BMG Norway AS,
case, implied making available to the Sony Music Entertainment AS and
public. The German Paperboy-case of Universal Music AS their costs for
July 17 2003 from the the court of first instance, the appeal
Bundesgerichtshof dealt with search court and the Supreme Court, before
engine and legal uploaded works. This two weeks after the decision has
case has no importance for our case. been served, plus interest pursuant
to §3 first para, first full stop of the
(25) That the linking is regarded as Act on Delay-Interest, for the
publishing, will have no significant present 8.75 percent, from the time
negative effect for the information- and for rightful payment until payment
communication-business on the Internet. is done.”
When a rights-owner uploads something
on the Net, or gives consent to such, it (28) Defendant has summarized
must be interpretated as that owner has claimed:
eo ipso given consent to linking to the
uploaded material. Neither is there any (29) The decisions of the appeal
problems in relation to the freedom of court is correct.
speech.
(30) The author has sole and
(26) Secondarily is alleged, that exclusive right to make the work public,
defendant is liable for damages as he has however, the right only protects the
intentionally contributed to the illegal concrete form of the work. Information
conduct that the uploaders did by in or about the work lays “in the free”.
putting the music on the Internet. The public can freely mention, make
comments from and make reference to
(27) There is laid down the the work. This is not in the sense of
following claim: copyright changed because the work is
made public in a illegal way. A lot of
material on the Internet is protected by
15
Translator: The Supreme Court of Sweden.
copyright, and if links is regarded as
16
Translator: The Court of Appeals of Denmark, publication, will an important part of the
Western District. linking – also to legal material – as a

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Unofficial Translation of the “Norwegian Napster” case

starting point be forbidden. It will be draft it is stated that offering a computer


problematically if interpretation require with Internet connection to the public at
consent to linking when the work has a public place, cannot be regarded as
been legally uploaded. public performance, as opposite the
situation for radio and TV sets. The
(31) Such links as dealt with in this Department finds it decisive that it to a
case, does not make use of anything but larger degree is the user that decides
copyrighted work lays “in the free”. It is what the computer-device shall be used
not the link that makes the work for. A inference from the bigger to the
accessible, but easier accessible. The less imply, that neither can the pekerne
link is coded in such a way that the users at napster.no be regarded as making
browser can load the music file on the something available to the public. Also
users own computer, provided that the here, it is the users that decides.
browser understand the language the
music file is uploaded by. The links in (34) The Paperboy-case dealt with a
our case was coded in the simplest way advanced search engine and is a
and contained only address information. important and central decision for our
It was for the users to decide whether case.
they would activate/use the links. There
is not real difference between making (35) There exists other ways to
such a link and inform of a web-address. protect right-owners. One possibility is
As for the later, the user can put it into given in §1 first para of the Marketing
the address field, either by typing it or Act. The Copyright Directive increase
copy-paste it. The appealing parties has the protection, and we must expect the
acknowledged that if so, then their does directive will be implemented soon.
not exist publication/accessibility. There
exists no criterion in copyright (36) Provided that the links cannot
distinction between an address which is be regarded as making something
coded – and thus computer readable - available to the public, the question
and one which is not. arises whether defendant has contributed
to the acts of the up loaders and
(32) Also, there exists a technology therefore is be liable for damages. This
by which the browser recognizes a web defendant contests. There is no causality
address, even if it is not coded as a link. between the linking and the uploading
If linking is regarded as publication, of the music. Even if, the determine
then it created huge problems for this must be that when the links does not
new technology. Some types of links, imply making something available to the
“coded links” and “get-links” [hente- public pursuant to the Copyright Act,
link], may possible have a copyright can they neither in the next turn be
aspect, but there is not reason to go into regarded as illegal and provide liability
this. for damages, because they increase the
availability. It would be a circular
(33) The Department for Culture argumentation. Defendant has not acted
and Church has circulated for comments intentionally. Liability for negligence
a report with suggestions to amendments can be a violation of freedom of
of the Copyright Act. It involves expression, compare Kyrre Eggen,
amongst others implementing of the Norges internasjonal forpligtelser på
Copyright Directive – “
Infosocdirektivet” – Directive from the
European Parliament and the Council
2001/29/EU of 22. May 2001. In the

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ytringsfrihetens område,17 Special (40) I find the appeal has to be


supplement no. 1 to NOU18 1999:27 decided on basis of the second ground,
(Ytringsfrihetskommisjonens liability for contribution, and that the
innstilling), page 282 etc.19 appeal “fører frem”. Since the oral
proceedings in overall has dealt with
(37) In any case, defendant must be whether the links must be regarded as
acquitted in relation to NCB, which only availability pursuant to the Copyright
has had the right to copy transferred to Act, will I discuss this, and especially in
it. relation to §2. The analysis will also
illuminate the reason for my choice of
(38) Pursuant to §58 second para, basis for my decision.
third full stop, is production of copies of
sound protected also where it has been (41) Pursuant to §2, first para.,
made outside Norway, but foreign artists copyright gives – under the limits of the
are not similar protected. These are only Act - sole and exclusive right to control
protected to the degree of the foreign the intellectual property
country rule, laid down in prescript by
the Department of Culture and Church (42) The preparatory report,
December 21 2001 pursuant to §59. Ot.prp.20 no. 26 (1959-60), suggests that
Much support that also the producers the sole and exclusive right to publish
can cite the foreign country rule to get includes any possible way of making the
protection. work known to the public. The third
para. is thus not meant as a legal
(39) The following claim has been definition of “making available to the
made: public”. The term is technology neutral.
“1. Defendant is acquitted. I agree with this interpretation of the law
2. Defendant and the public is and remark that in the statement to
awarded the costs for the court of amendments to the Copyright Act the
first instance, for the appeal court term is referred to as a superior term.
and the Supreme Court, plus
interests pursuant to the law from 14 (43) The sole and exclusive right to
days after the respective court publish is not lost when the work is
decisions was served and until published for the first time. An example
payment is done.” of making the work available to the
public is turning on music from the
radio in a shop or a workplace. I refer to
Rt-1953-633, the
17 Bedriftsmusikkdommen21 and the
Translator: Doctor thesis by Kyrre Eggen:
Norway’s international obligations in the area of
Swedish Morningtondommen,22
free expression and speech. published in NIR-1980 page 258. With
18
Translator: Norges Offentlige Utredninger. reference to Rt-1995-35, the
19
Translator: White Paper 27 of 1999 on Smartkortdommen23 there has in legal
proposed amendments to Article 100 on freedom theory been made the requirement that
of expression of the Norwegian Constitution] can the method that is used must give the
be found at public a fairly direct access to the work
<http://odin.dep.no/jd/norsk/publ/utredninger/N before one can speak of accessibility.
OU/012005-020029/index-dok000-b-n-a.html>.
Chapter 12 is a Summary in English and can be
found at 20
Translator: White Paper
<http://odin.dep.no/jd/norsk/dok/andre_dok/nou/ 21
Translator: Business-music-case.
012005-020029/hov012-bn.html> (visited 22
Translator: Morning-tone-case.
23
January 2005). Translator: Smart-card-case.

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Unofficial Translation of the “Norwegian Napster” case

how access is given. It may be possible


(44) It is not disputed that the to find links that are coded in such a
uploaders made illegal copying and way that they must be said not to have
illegal access available to the public. been accessible [to the public], but this
However, I stress that if the linking is has not been particularly illuminated to
regarded as access then it will embrace the Supreme Court.
both legal and illegal material that has
been laid out. The understanding of (48) There can be no doubt that by
what is accessibility must be the same in making a web-address known by
both incidences. reproducing it on the Internet is
accessibility.
(45) To illuminate the question
whether the linking in napster.no was (49) When the Copyright Act was
accessibility to the musical work, the enacted in 1961 the problem of today
parties have thoroughly dealt with the was not present. What makes the
technology behind the users’ evaluation of the principal statement
possibilities of hearing music from difficult is exactly the technical
links. possibilities that the Internet and
different software gives. Some efforts
(46) It is stated by the appealing have been made by legislators as to
parties that the linking gives evaluate liability etc. related to this new
independent and direct access to the technique. I mention the implementation
music. A on his side has claimed that the of the E-commerce Directive, see
links only contained an address to a Ot.prp. no. 4 (2003-2004)24 and the
website, and by clicking the link the work on the revision of the Copyright
music was stored temporarily on the Act. But liability in connection with
user’s own computer. Only at this time linking has not really been dealt with.
could the user play, or alternatively store
the music file for later use. A part of the (50) The Swedish Tommy Olsson
theory the parties have made reference case dealt also with sound files made
to points out that is can be of importance accessible through links on Olsson’s
whether the user by clicking a link homepage. Högsta domstolen25 regarded
continued “being on” napster.no, or this as “public presentation”. The case
whether he has “moved” to the website was a criminal case, and Olsson was
that the links points at. In addition, there acquitted because public presentation of
has been an issue of distinguishing a sound recording was not covered by
between direct links/deep-linking on one the recording producer’s sole and
hand and on the other site surface-links exclusive right, and it was the record
– links to the website’s homepage. producers that were offended in the
case.
(47) For me it is not decisive
whether it is one or the other type of (51) The opinion of the German
link, nor if the user in a technical sense Supreme Court in 2003 in the Paperboy
“is found to be” on his own computer, case, which I have mentioned before,
on napster.no, or whether he has dealt with another issue and facts, but
“moved” to the website that is linked to.
It is difficult to see why this should be 24
decisive for regarding the work being Translator: White paper from Odelstinget
accessible to the public in sense of the [Second Chamber of the Norwegian Parliament]
on the proposal on implementing the EU E-
Copyright Act. The decisive factor must Commerce Directive into Norwegian Law.
be how the technique works – if and 25
Translator: The Swedish Supreme Court.

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clearly pulls in another direction. The decision did not discuss another issue
case was presented to the26 Supreme which to me is a special problem – that
Court in translation by state certified the music files also could have been
translator Nils Nordang. The case dealt reached by information of the web-
with material that legally was placed on addresses on napster.no. Even though
the Net, as opposed to the present case. these web addresses considered as text
On the basis of German law, the act of are complicated, to copy them and paste
making a direct-link to such material them into the address-field is easy. It
was not regarded as a violation of the would give the same direct access.
copyright law, but rather as a reference
to the work in a way that just made (54) When illegal accessibility can
access easier for the net-users to get a be combined with both punishment and
work that already was accessible for the civil liability there needs to be a
users. Regarding the linker’s operation, reasonable sufficient reason why use of
the translation states in part:27 one method is affected but not the other.
The appealing parties have not been able
“He does not himself make the to give any sufficient reason for this,
protected work accessible for and I find it extremely difficult.
downloading by the public and neither Furthermore, the Copyright Act was not
does he himself communicate the work written with thought of the technical
to third-parties on request. For a user evolution we have seen in the last few
that does not yet know the URL or a years, with the result that the Act at
precise description for the reference to present is under reconsideration in the
the website on the Internet, the access to Department with the aim of amendments
work is indeed first made possible by in part because of this.
the help of the hyperlink and thereby in
the literal sense is the work made (55) The close analogy between
accessible; but this is not any different direct linking to a website and giving
than a reference to a publication in a information of a website’s address is
footnote in a printed paper or on a further illustrated by the development of
website.” accessible software in relation to the
Internet. For both e-mail and ord-
(52) I remark that the designation processing can be found software that
“URL” indicates the address of a recognizes an Internet address. Since it
website on the Internet. is so much easier just to click on a link,
the software automatically makes an
(53) The Copyright Act has its address available through a click, that is,
background in Nordic co-operation, and it converts it to a direct-link. Thus, pure
the consideration of Nordic unity is and simple this is how references and
important for the evaluation of our case, footnotes that state a net-address can be
although the decision from the Högsta changed by the software to direct-links.
domstolen has been criticized and in This could create problems if a
legal literature the opinions have been reference on this basis should be
divided on the question on liability for regarded as accessibility.
linking. On its face the link can appear
to be access to the work. The Swedish (56) The parties have tried to
illuminate the consequences of
regarding the linking as accessibility.
26
Translator: Norwegian. The starting point must be that linking,
27
Translator: HERE re-translated into English from
both to legal and illegal uploaded
the Norwegian decision, not the original German
decision. material, only can take place with the

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Unofficial Translation of the “Norwegian Napster” case

owner’s consent. The appealing parties the strict requirements for evidence of
have referred to views in theory which both objective and subjective facts in the
hold that placing something on the criminal law.
Internet must be regarded as consent to
linking. As an example, I quote (60) The appealing parties have
professor dr. juris Ole-Andreas alleged that A with intent has
Rognstad in Festskrift til28 Mogens contributed to the accessibility of the
Koktvedgaard (2003) page 472: music on the Internet.

“There is no reason for (61) I first deal with the claim from
requiring the originator’s consent to TONO29 and NCB.30 The provision in
this in general. The problem can be §54 first para. letter a covers amongst
solved in the same way as the others violation of the protection of the
“consumption-problem”, through a copyright pursuant to §2.
copyright default rule: Consent for
use of the work is regarded as (62) The intermediate court held
covering the normal and usual that the uploaders’ illegal acts were
linking to the pages. Here it is a completed when the music was
question of the more definite limits uploaded and that there thereby was no
of the default rule. However, in this basis for liability for contribution. I do
connection that is another issue.” not agree. The criminal provision targets
“to violate provisions that protects
(57) Much can be achieved by copyright”,31 and here the uploader’s
reading consent into the normal violation consists of making the music
situation, but there is also a question of accessible. It cannot be derived from the
defining limits that can be bases for both wording that the violation ceases when
doubt and disputes. Therefore, the uploading is finished in the technical
consideration of the consequences is a sense, and to me such an understanding
contributing factor for me to hold that is very unnatural. In my opinion the
the case must be decided on the violation of copyright continues as long
subsidiary basis. This points precisely to as the uploader lets the music stay on
linking of illegal material, and it is such the Internet. I add that it would be
linking the appealing parties seeks to strange if the [statute of] limitation for
stop or at least reduce. such a violation should begin to run
from the time the uploading is finished.
(58) I now deal with the subsidiary
basis. (63) A has alleged that if the linking
cannot be regarded as accessibility, then
(59) Pursuant to §55 first para. of there should not be any basis for liability
the Copyright Act, compensation for for aiding. I do not agree with this
harm in the sense of §54 can be given on argumentation. It is not a requirement in
the basis of the ordinary damage rules. criminal law that the aiding act in itself
Aiding is punishable after §54 second has to be illegal. The linking has
para. It is clear [from the text] and also increased the effect of the uploader’s
from the preparatory work to the law acts by increasing the accessibility to the
that damages can be awarded even if
there is no basis for criminal liability. 29
Translator: The Norwegian organization for
The usual requirements for evidence in collecting copyright fees for music and distributing it
the field of damages is being used, not to the respective copyright owners.
30
Translator: Norwegian Copyright Bureau.
31
“å overtre bestemmelser gitt til vern for
28
Translator: Homage Volume to opphavsretten”.

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Unofficial Translation of the “Norwegian Napster” case

music. A himself has explained that the homepage of the webpage shows this.
users generally could not find the music The introduction stated:
files without the links.
“Welcome to napster.no
(64) It is of no importance to the You are at Norway’s largest and
issue of aiding whether the uploaders best website for free music. Here you
had knowledge of A’s operation, see can download as much music you
Johs. Andenæs, Alminnelig strafferett32 want.”
(5 ed., 2004) page 327.
(68) There was uploaded popular
(65) Whether the linking should be music by well-known artists. Amongst
regarded as aiding requiring a remedy of others, links were made to music that
damages must depend on an evaluation was on hit lists like Norway Top 20 and
of the specific facts. There must be the VG-list. A has without doubt known
drawn a limit from a general “unlawful” the music was uploaded without consent
reservation. I refer to Andenæs page 154 from the copyright owners. He has acted
and mention briefly that he states that with intent and cannot be found to have
the term unlawful often can be been mistaken of the law and that he
translated to include “improper”, was making criminal acts.
“unwarrantably”, “blameworthy” or
similar characterizations. (69) Thus, A must be liable for the
damage TONO has suffered, first and
(66) The principal and the aider foremost because some of the users, that
shall be judged on basis of their own otherwise would have bought CDs, got
conditions. This was held already in Rt- the music though downloading.
1908-790. I refer to Andenæs page 338. Causality between his acts and TONO’s
I can also refer to Erling Johannes loss exists without doubt. I add that
Husabø, Straffeansvarets periferi33 liability for damages in this case is in no
(1999) especially page 255. He notes way inconsistent with freedom of speech
that “aiders can be prosecuted in or expression.
Norway both in the case where the
aiding act is “done” in the country (§12 (70) I do not find reason to deal with
first part of the Penal Code) and were the issue that A should not be liable
“the result has happened in or is aimed” towards NCB. Damages in connection
at this county ((§12 last part)”. Thus, it with infringement of copyright is
is of no importance if the uploaders measured by one figure. It is then up to
could be punished pursuant to the law of TONO and NCB to divide the total
the country in which they were residing between themselves, as they arranged.
- something that is not stated in the
record. (71) Finally I note, that is clear and
indisputable that as for TONO and NCB
(67) In my opinion, A’s acts are to there exists no problem in relation to
be regarded as aiding that is both copyright protection on the international
intentional and extremely blameworthy. plan. Through precept to the Copyright
His aim with napster.no was exactly to Act of 21 December 2001 no. 1563, the
give others access to the music. The foreign country rule, in pursuance of
§59 of the Act, foreign works are
32
protected as if they were Norwegian.
Translator: General Criminal Law, a treatise by a
famous Norwegian Law Professor.
33
Translator: The Periphery of the Liability to
(72) With regard to creative artists
Punishment. and producers, they are protected in

Norwegian Supreme Court - Napster_EN – page 11


Unofficial Translation of the “Norwegian Napster” case

Chapter 5 of the Copyright Act, and record-producers embraced by §58


especially §42 and §45, which does not of the Copyright Act or the foreign
give a monopoly for public presentation country rule. As for artists that do not
of recordings. In the amendment to the have citizenship in or are domiciled in
Copyright Act of 23 December 1988 the E.U. and as for producers outside the
no. 101 was as §54 first para. letter d E.U. he asserts these are not covered by
established a criminal – and thus also the protection.
damages – protection for creative artists
and other property owners pursuant to (76) I do not agree as for the record-
chapter 5 of the Act, through a ban producers. §58 second para., third
against making available to the public sentence states:
the works and recordings mentioned
amongst others in §42 and §45, when “The provision in §45
the copies are produced in violation of concerning the right to make copies
these provisions. shall apply for the benefit of all
sound and film fixations.”
(73) It follows, as I have previously
mentioned, that the uploaders of music (77) When the question is the
have made it available to the public, and producers protection against production
that A must be regarded as having aided of copies pursuant to §45, there exists
this. However, the question arises no geographical limitation as to who is
whether all the creative artists and covered. Thus, the uploaders’ produc-
producers involved in the case, belong tion of copies is covered by the
to the group of property owners that the Copyright Act, and A has aided the
Act protects. uploaders to make available copies that
were produced in violation of §45.
(74) As §54 first para. letter d is
related to the illegally produced copies, (78) The provision in §58 second
this must be interpreted as such copies para., third sentence does not cover
which can be proscribed by the artists. This must mean that chapter 5 of
Copyright Act. Thus, it must be a the Act only protects them against
requirement for liability for punishment recording of their presentations to the
– and liability for damages – that the extent provided by other parts of §58 or
Copyright Act gives the property owners by the foreign country rule. The
protection against the production of provisions of chapter 5 of the Act which
copies which was done by the uploaders. the property owners embrace also limit
A geographical limitation of property the scope of §42. Since §54 first para.
owners covered by chapter 5 of the Act letter d covers publication of recordings
applies pursuant to §58 and the foreign as mentioned in §42, I cannot see other
country rule. Prescript §6-1 first para. than this only covers those artists that
provides that the Act shall apply are protected by chapter 5. As §45 does
similarly to creations and works not cover artists, I can not see that they
embraced by chapter 5 of the Act for can plead that the recordings are
persons that are citizens of or domiciled violating this provision.
in a country inside the European Union,
and for a corporation with office inside (79) I have reached the opinion that
E.U. A’s liability for damages to the artists
must be limited to those artists that are
(75) A has not denied that if he is embraced by §58 or by the foreign
regarded as liable for damages to country rule. It has been asserted by the
TONO, he will also be liable to artists record companies that even if such a

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Unofficial Translation of the “Norwegian Napster” case

limitation has to be made, this gives no


reason to reduce the total amount of (83) Judge Mitsem: Likewise.
damages decided by the trial court as the
exclusion must be regarded as moderate (84) Judge Bruzeluis: Likewise.
as reasoned by the trial court. I agree.
(85) Judge Aasland: Likewise.
(80) The case has raised
fundamental questions, which are of (86) According to the votes the
first impression for the Supreme Court. I Supreme Court made the following
find the costs should not be awarded for
any of the courts. decision:

(81) I vote for the following 1. 1. The decision of the


decision: court of first instance is
1. The decision of the court of affirmed.
first instance is affirmed. 2. No cost is awarded in
2. No cost is awarded in relation relation to the cases
to the cases before the appeal court before the appeal court
and the Supreme Court. and the Supreme Court.

(82) Judge Oftedal Broch: I am in


overall and in the decision with first END of Document
voting.

Norwegian Supreme Court - Napster_EN – page 13