The pirates may still operate without interference!
08. April 10
Borgarting appeal court has dismissed a claim for a preliminary injunction against the telephone and internet service provider Telenor.
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
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
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
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.