Court refuses to grant injunction against ISP in illegal file-sharing case

On 6th November 2009 the Asker and Baerum District Court rendered its long-awaited ruling in the Telenor file-sharing case.

Background

The Pirate Bay is a Swedish bit-torrent tracker and index website. It is a popular site for searching for shared files, the overwhelming majority of which contain works protected by copyright.

In 2008 a Danish court granted an injunction against internet service provider (ISP) Tele 2, ordering it to block customers’ access to The Pirate Bay. Other courts in other jurisdictions have returned similar decisions (eg, Ireland, Italy).

On  17th April 2009 the Stockholm District Court sentenced four individuals to one year’s imprisonment for copyright infringement relating to The Pirate Bay file-sharing website and awarded Skr30 million (approximately £2.7 million) in damages. The judgment has been appealed.

Norwegian case

In June 2009, perhaps inspired by the above-mentioned court decisions, a number of Norwegian record companies, film distributors and film producers, together with five US film studios and Norwegian performing rights society TONO, filed a petition with the Asker and Baerum District Court for an injunction against Norwegian ISP Telenor Telecom Solutions. The plaintiffs asked the court to order Telenor to:

• stop making available to the public via The Pirate Bay website works protected by copyright or neighbouring rights held by the plaintiffs;
• stop contributing to the making of copies of such works via the same website; and
• take the necessary steps to prevent customers from gaining access to a number of The Pirate Bay internet addresses.

The plaintiffs based their claims on contributory infringement by the ISP. They contended that Telenor was contributing to both The Pirate Bay’s and its own customers’ infringement of copyrights.

Telenor argued that:

• there are no legal grounds for an injunction and that, as service provider, Telenor had no obligation to control content;
• the Copyright Act and Article 8.3 of the EU Copyright Directive do not constitute legal grounds for an injunction; and
• in all events it had not played the role of an unlawful contributor to the acts of its customers or to The Pirate Bay’s supply of services.

It also raised a freedom of information argument.

Decision

The court refused to grant the injunction. While noting that the Copyright Act does not expressly state that an infringement by an intermediary or contributor can be stopped, the court agreed with the plaintiffs that it is a necessary consequence of the exclusive right that a rights owner should be entitled to demand that infringements be stopped or prevented, and that this also applies with regard to contributory infringers.

The court noted that since the end users’ acts constitute expressions on a website, granting an injunction would amount to a restriction of access to information from that website, and that where the freedom of information and the freeedom of expression are concerned, the measures sought require a particularly clear legal basis. Although the court expressed some doubts about this, it stated that it did not need to deal with the question since the injunction was to be denied for other reasons.

The court found that Telenor was an active contributor by providing the necessary infrastructure and operational, maintenance and support services, and a passive contributor through its failure to intervene when a service was used for illegal file sharing. However, since Telenor's contributory acts were not directed at its individual customers or their acts, or at The Pirate Bay’s acts, the court noted that Telenor acted in the same way whether its services are used for legal or illegal purposes. Therefore, the court found that the contributory infringement of Telenor was not “unlawful”, and thus was not actionable. The court gave this reason for the decision, although another consideration was also discussed - the consequences of granting an injunction in terms of imposing on Telenor and other ISPs an obligation to monitor and control how the Internet is used, a task that is usually given to the public authorities rather than private parties. The court also referred to the fact that the Ministry of Culture is working on a project to introduce legislation on the issue.

Comment

The decision is very brief - only nine pages - and the reasons given for the outcome are not entirely convincing. When the court held that Telenor’s acts were not unlawful, it found that although they were caught by the wording of the law, the legislature would not have intended for them to be. The court also noted that the rights owners must have the infringements stopped and that it was necessary to find a solution, but failed to do so. As a result, the rights owners have been left in a state of lawlessness.

At the same time, it is surprising that the court did not discuss the issue of freedom of information in greater detail, and that almost trite considerations about what is normally expected of private parties as compared to public authorities received as much attention. The plaintiffs can appeal the decision, or alternatively can institute ordinary proceedings before the same district court.