Bailiff's Court of Frederiksberg decision of 5 February 2008

8/9/2019 Bailiff's Court of Frederiksberg decision of 5 February 2008

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

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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 8458www.Frederiksberg.dk

*11 Transcript of records of the court

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

in courtroom Y, Blegdamsvej.

On the bench: Duty judge Poul Bisgaard-Frantzen.

Case: FS 14324/2007

1. IFPI Denmark as agent for Aller International

A/S et al. *4

1 Number after a bold “*” state the page of the original deci-

sion.

2. Foreningen af danske Videogramdistributører

[Association of Danish Video-distributors] as

agent for Buena Vista A/S et al. *5

3. Gyldendalske Boghandel Nordisk Forlag A/S

4. JP/Politikens Hus A/S

v.

DMT2 A/S2

Attorney-at-law Jakob Plesner Mathiasen representedclaimants.

Attorney-at-law Morten Agervig Helles represented

defendant.

2 Translator: In Denmark, the company is also called

“Tele2”. From 12 July 2007, it is part of Telenor.




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The following documents were presented: Request for

an injunction, statement of defiance, reply, exhibits 1-21 & A-B.

Claimants laid the following claims:

1. Defendant should be prohibited from contributing to

others people through the website www.thepiratebay.

org making access and copying sound fixation and

film and literarily works over which the claimants

have copyright.

2. Defendant should be ordered to take the necessary

measures, which will prevent access for defendant’s

customers to the website of thepriratebay.org and sub-

sequent sub-pages and sub-domains.

Defendant made claim that an injunction should not be

issued.

The case and evidence from exhibit was presented for

the court.

Expert witness, Kristian Løkkegård, informed that

he works as chief technology officer at DtecNet Soft-

ware ApS in Denmark. The company develops soft-

ware, sell licenses and trace amongst other illegal ac-

tivities on the Internet. Presented with letter of 24January 2008 (exhibit 18 page 1, section 1-6) from

managing director (CEO) Erik Testmann, Contest A/S,

Denmark to Johan Schlüter *6 Law Firm I/S, the wit-

ness declared him in agreement with the content.

By use of a piece of software, for example Azureus

(shown in exhibit 5) a user can open torrent files

(bit.torrent.com) which is stored on www.thepiratebay.

org. Data in a torrent file is on its face of no value for

the user. Azureus support bit.torrent.com, which can

be compared with a communication file. When Azer-

eus or another application that support bit.torrent.com

is installed, the user by a click on a link to

www.thepiratebay.org download requested materialfrom another user. The user is automatically trans-

ferred to the application, which fetches the file.

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

rial that are offered by other users. When first the us-

ers have found each other, they can communicate and

exchange material without the use of www.thepirate-

bay.org.

The parties pleaded the case.

The claimants have argued in accordance with the

claims made in the briefs, amongst others:

that from the website thepiratebay.org is given public

access to sound and 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

Copyright Act,

that the claimants not have given permission to this

publication,

that this publication is in violation with the claimants’

copyrights

that the users’ downloading of digital copies of sound

and film and literarily works, offered through the web-

site thepiratebay.org, constitute an illegal copying,

pursuant to article 2 of the Copyright Act, see Articles

11 section 3, 66 sections 1 and 2, 67 section 1 and 2.

that defendant contributes to the illegal copying and

access by transmitting the illegal accessible material,

that the exception in article 11a of the Copyright Act

does not embrace this transmission,

since article 11a of the Copyright Act presuppose that

copying is done on basis of a legal original, see article

11 section 3, *7

that pursuant to the remarks made to the E-commerce

Act, does the rules on freedom from responsibility in

this Act not embrace preliminary remedy [~ US: TRO

(temperate restraining order)] including injunctions

granted by a bailiff court, see decision from Østre

Landsret [Court of Appeals for Eastern District]

Docket no. B-1677-033 (exhibit 14), affirmed by Deci-sion of the Supreme Court published in [Danish Case

Reporter] UfR 2006.1474H,4

3 Translator: Partly published in decision mentioned in nextfootnote.4 Translator: TDC Totalløsninger A/S v. IFPI Danmark as

agent for Arcade Music Company et al., UfR 2006.1474 H

(Supreme Court of Denmark, 10 February 2006 - Docket

no. 49/2005) (Plaintiff was service provider for A, which




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thus article 14 of the E-commerce Act does not ruleout that a ban can be made against defendant’s acts,

which violate the claimants’ copyrights,

that there is proportionality between the injunction

claimants ask for and the consideration to the defen-

dant [US: balance of equities tips sharply in the mov-

ing party’s favor]

that the website www.thepiratebay.org is the necessary

connecting link between the users that makes it possi-

ble to make accessibility and copying material be-

tween the users,

that the activities on the website are illegal,

since the claimants have not given permission to the

publication and copying that happens through the

website,

since the users’ downloading of files through the web-

site is illegal copying in violation of article 2 section 1

of the Copyright Act,

since the users’ accessibility of files through the web-

site is a publication in violation of article 2 section 1

of the Copyright Act,

since thepiratebay.org by its deep links perform anindependent publication in violation of article 2 sec-

tion 1 of the Copyrights Act, and contributes to the

users’ illegal copying, also in violation of article 2 sec-

tion 1 of the Copyright Act,

since the whole purpose of the “pirate” bay is to ex-

change piracy-copies,

that by blocking for the access to the website

www.thepiratebay.org, the defendant’s customers will

be hindered from making accessible and copying

copyright protected material in contravention of the

claimants’ rights,

had two servers with amongst others illegal copyrightedmusic. The Court held the plaintiff’s transmission was a

temporary illegal copying. It was not disproportional that

plaintiff would have to disconnect A’s servers. As A did nothave static IP-addresses, the injunction should only cover

subscribers, which at a specific given time had been issued

certain given IP-addresses. The parties agreed that plaintiff

was free from responsibility pursuant to article 14 of the

Danish E-commerce Act).

that there is no distinction between blocking access tothe website www.thepiracybay.org and blocking the

access to the websites www.allofmp3.com5

(exhibit

15) and www.mp3sparks.com6 (exhibit 16),

that the transmission of copyright protected material is

done through defendant’s net *8 even if the data-

transmission is done between the users or from a web-

site of the users, see exhibit 18,

that transmission of copyright protected material

though defendant’s net constitute a temporary copying

in violation with claimants’ rights, see article 8(3) of

European-Parliament’s and Council’s Directive

2001/29/EF, [Danish] Supreme Court Decision pub-

lished in UfR 2006.1474 H, Copenhagen Bailiff’s

Court’s decision of 25 October [Translator - The fol-

lowing seems lost in the court’s transcript: “2006 in

Docket no. F1-15124/2006 (exhibit 15) and Frederiks-

berg Bailiff’s Court’s decision”] of 15 August 2007 in

Docket no. FS 7509/2007 (exhibit 16) and EU-

Commission’s Report of 30 November 2007 (exhibit

21), and

that an injunction is the relevant and effective measure

to prevent those violations of the claimants’ rights

through website www.thepiratebay.org from happen-

ing,

that pursuant to precedent [case law], including Bail-

iff’s Court of Copenhagen’s decision in a total similar

case F1-15124/2006 (exhibit 15) and Supreme Court

5 Translator: IFPI Denmark as agent for Aller International

A/S et al. v. Tele2 A/S (Bailiff’s Court of Copenhagen, 25

October 2006 - Docket no. F1-15124/2006)(The court is-sued an injunction against ISP's contributing to and giving

access to Russian www.allofmp3.com, which distributed

illegal music). On 22 November 2006, Tele2 decided to

accept the court order and permanently block allofmp3.com,

Robert Vanglo, Tele2 lukker permanent for Allofmp3.com,

Computerworld-DK 22 November 2006 at<http://www.computerworld.dk/art/36684?a=newsletter&i=

763>.6 Translator: IFPI v. Tele2 (Bailiff’s Court of Frederiksberg,15. August 2007 – Docket FS 7509/2007)(Similar decision

concerning mp3sparks.com [which is like Allofmp3.com

operated by Mediaservices, Inc, a company founded in 2000in Moscow, Russia]), Mikkel Aabenhus Hemingsen,

Fogedretten beordrer Tele2 til at blokere for mp3-site,

Computerworld-DK, 16 August 2007 at <

http://www.computerworld.dk/art/40824?a=rss&i=0 > and

Wikipedia at < http://en.wikipedia.org/wiki/AllOfMP3>.




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decision of 10 February 2006, published in UfR

2006.1474 H, there shall be issued an injunction in thiscase.

Claims pursuant to the Civil Procedure Code:

that the acts upon which an injunction is requested are

clearly in violation with the claimants’ copyrights,

that the illegal activities upon which is sought hin-

dered otherwise is expected to continue,

that the general law on penalty and damages do not

give the claimants sufficient protection, and at this

place should be noted, that the legislator at the time of

tighten up the rules of injunctions by amendments to

the Civil Procedure Code expressly in the comments

has stated that the requirements for injunctions nor-

mally will be fulfilled in cases concerning violations

of immaterial rights [copyrights], see remarks to arti-

cle 642 of the bill.

The defendant has argued in accordance with the

claims made its Answering brief, amongst others:

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

tain files of any kind that can be downloaded,

that accessibility to the claimants’ to sound and filmand literarily works is done through peers,

that it is not possible for defendant to shut off the ac-

cess to those in the case involved peers,

that blocking the access to www.thepiratebay.org for

defendant’s customers will have no influence of such

customers’ ability to download those in the case in-

volved files from those peers, where the protected files

are stored,

that no accessibility to sound and film and literarily

works take place from www.thepiratebay.org, *9

that those acts, upon an injunction is requested, do not

violate any of the claimants’ rights,

that no wrongful activity is taking place at the website

www.thepiratebay.org,

that there is done no copying and thus no temporary

copying in defendant’s routers during the transmission

of downloads of for example copyright protected ma-

terial from peer to peer, including via/over the website

www.thepiratebay.org,

that the claimants has not lifted its burden of proof that

there is done unlawful conduct through defendant’s

customers access to www.thepiratebay.org, much less

on that website at all,

that defendant has shown that those acts described by

the claimant are not unlawful, and thus the acts cannot

be prohibited, wherefore no injunction can be issued

against those acts,

that the requirement for issuing an injunction are lim-

ited by one by law fixed principle of proportionality,

which in this case imply that there shall not be issued

an injunction because of the substantial disproportion

between the interests of the claimants and the harm

and nuisance, which an injunction will cause defen-

dant.

In addition, the defendant has during the oral proceed-

ings waived the right to claim security if the court de-

cides to issue an injunction.

DECISION

The court finds it undisputed that the website

www.thepiratebay.org works as index and search-engine, which allows users of the website to get acces-

sibility to files from each other.

On basis of the production of evidence and argumenta-

tion, the court holds that an overwhelming part of thematerial exchanged through the website by the users

are protected by copyrights, which are administrated

by the claimants, and that the claimants have not given

permission to the materials publication and accessibil-

ity. In addition, it is substantiated that the use of the

website – which according to the information-website

www.alexa.com rank number 23 of the most popular

websites in Denmark – has a certain diffusion in Den-

mark.

The exchange of copyrighted protected files, which is

taking place between users of the website – without

the permission of the claimants – thus constitutes a

violation *10 of the sound and film and literarily

works that the claimants administrate and owns the

right to, see article 2 section 1 of the Copyright Act.




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The court holds that the website www.thepiratebay.org

works as a special constructed and necessary search-engine for wrongful distribution of copyrighted pro-

tected works. Further, the court finds the function of

the website makes copyrighted protected works acces-

sible for the public in a manner that must be consid-

ered with that of public performance, see article 2 of

the Copyright Act, even though www.thepiratebay.org

not by itself has uploaded copyright protected material

on the net. In this connection, the court finds it impor-

tant that the website through its search-function is pro-

grammed with direct links to copyright protected ma-

terial hosted by the website’s users, see UfR

2001.1572 V.7

It is undisputed that customers at telephone-company

DMT2 A/S have access to website www.thepirate-

bay.org and subsequent sub-pages and sub-domains.

Pursuant to article 2 section 2 of the Copyright Act

any direct or indirect, temporary or permanent, fully or

partly production in any way or any form is regarded

as reproducing copies. All form of copying is em-

braced by article 2.

The telephone-company’s provision of access to

www.thepriratebay.org constitutes a transmission

through the telephone-company’s net of copyright pro-

tected works. The court finds that DMT2 A/S’s trans-

mission of the works constitutes a temporary produc-ing of copies of the type, which is embraced by article

11a of the Copyright Act. It is without any signifi-

cance that the copying is only temporary, since the

reproduction is not done legally, see UfR 2006.1474

H, Copenhagen Bailiff’s Court’s decision of 25 Octo- ber 2006 in Docket no. F1-15124/2006 and Frederiks-

berg Bailiff’s Court’s decision” of 15 August 2007 in

Docket no. FS 7509/2007.

Therefore, the court finds that DMT2 A/S by giving its

customers access to www.thepiratebay.org contributes

to violate de copyrights that is administrated by the

claimants, see article 2 section 2, confer section 1 of

7 Translator: KODA et al. v A, UfR 2001.1572 V (Courts of Appeals - Western Division, 20 April 2001 - Docket no.

KB-afd. B-1943-99) (15 year old A made a website with

direct links to Danish and foreign music, which either wasstored on foreign serves or had been uploaded by himself.

The court found he unlawful had made the direct links and

he was ordered not to copy or contribute to copy illegal mu-

sic on the net. Plaintiffs awarded damages of 100,000

DKK).

the Copyright Act. The fact that www.thepiracy.org to

a certain extent – even though to a small degree – of-fers access to legally file-sharing between the websites

users, cannot legitimize the wrongful acts.

Thus, the court finds DMT2 A/S are making acts that

violets claimants’ rights, see article 642 section 1 sub-

section 1 of the Civil Procedure Code. In addition, the

court finds the other requirements pursuant to article

642 of the Civil Procedure Code for issuing an injunc-

tion is fulfilled. Moreover, the court has not been pre-

sented with facts that imply an injunction will cause

DMT2 A/S harm or drawbacks of a kind that would be

in obvious disproportion to the interests of the claim-

ants for an injunction, *11 see article 643 section 2 of

the Civil Procedure Code.

As it can be presumed that there exists no risk for

DMT2 A/S getting liable to its customers or third per-

sons by obeying the injunction, see UfR 2006.1474 H,

and as DMT2 A/S has waived a claim of security if an

injunction would be issued, the court accept the claim-

ants’ petition of an issuance of an injunction without

security.

ORDER

DMT2 A/S must not contribute to others’ publication

and copying through the website www.thepiratebay.

org of sound and film and literarily works over whichthe claimants have copyright.

DMT2 A/S shall take the necessarily measures to pre-

vent access for DMT2 A/S’s customers to Internet

website thepiratebay.org and subsequent sub-pagesand sub-domains.

Case closed.

Court adjourned.

Poul Bisgaard-Frantzen

Duty judge

[Translator: Even though defendant blocks the Swed-ish website thepiratebay.org, it has decided to appeal the decision. Defendant wants an test case decision on

the question of whether internet service providers in

Denmark has to block. In this matter it is supported by

other Danish ISPs, Rune Pedersen, Tele2 går i retten i

Pirate Bay-sagen, Computerworld DK, 11 February

2008 at

<http://www.computerworld.dk/art/44198?a=newslett

er&i=1605>.

Bailiff's Court of Frederiksberg decision of 5 February 2008

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Transcript of Bailiff's Court of Frederiksberg decision of 5 February 2008