The claim involved that the defendant Telenor should be prohibited from contributing to making available to the public and reproduction of copyrighted material through the web page Pirate Bay. The claim also involved that Telenor should be prohibited from providing access to the Internet addresses  where Pirate Bay could be reached. The court expressed views on whether or not the actions of Telenor could be considered as assistance at all.

Norway is apparently one of the few European countries left where Pirate Bay is still allowed to operate and has not been shut down. It was established in 2003 and is in reality a web page which collect links to other web pages offering downloadable files. The downloading of the files does hence not take place at the Pirate Bay web page.

As the largest Internet service provider in Norway a preliminary injunction was filed against Telenor by 23 companies and organizations, hereunder TONO (Norway's Performing Rights Society), several American and Norwegian movie companies and film distributors that wanted to prevent instances of infringement on copyrighted material.

In this case the e-commerce act section 16 will partially serve to resolve the question at hand. The legislator has by this provision decided that "service providers which service consists of providing access to a communication network" will not be liable for the content of the information that is provided. According to sec. 20 however, this provision shall not prevent a court of law or other administrative authorities to demand that the service provider puts and end to the infringement based on national legislation - e.g. through a preliminary injunction like the current matter.

The court referred to the Napster case. The difference, however, was that the music was directly available on the web page via links whish were uploaded on Napster's web page. The liable party was identical to the one organizing the illegal uploading. In the current matter on the other hand Pirate Bay is a tool for the users to find the files. The web site organizes the users to obtain direct contact with each other in order for them to share files. As opposed to the Napster case there was no basis for finding that Telenor could be considered a provider of a "technical infrastructure" which could be considered as active involvement to the illegal file sharing. The court furthermore found that the e-commerce act did not provide for Telenor to have a duty to remove or block illegal content being transferred.

In our view, this kind of accomplice liability would in realty make it extremely difficult to handle for the net service provider. It would involve that Telenor would be obliged to review all web sites and investigate whether or not, not only illegally copyrighted material was being offered but also e.g. cases of trademark, patent and design infringement.

The last word has probably not been said in this matter and we will continue to follow it.