Norwegian Supreme Court decision of 27 January 2005 in the "Norwegian Napster" Case

Unofficial Translation of the “Norwegian Napster” case

Norwegian Supreme Court - Napster_EN – page 1

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>.



(1) Judge Gussgard: The case deals with a claim of damages pursuant to §55 of the Copyright Act caused by making links on the Internet to copyrighted works – music files in mp3 format.

(2) On October 4 2000, the domain

name napster.no was registered. The owner was Frank Allan Bruvik d/b/a Napster.no. The basis of the website was that the users informed of web-addresses to music files, which addresses was placed on napster.no. On the homepage was a link named “Add an mp3” where a user could type amongst others artist, title and the web-address to the actual music file. By help of a software application – a “script” – would automatically be generated a new site under napster.no with a link to the music file. From time to time the script did not work, and links would then be made manually. The case covers the period August through November 2001 during which the website contained in average links to 170 music files. All music files was stored on foreign servers.

(3) After the links was made, the

website could be used to downloading of music in mp3 format from the Internet. Mp3 is a designation of a compression-technique that makes it quicker to download a file than in the original format. When a user clicked on one of the links, he was offered the choice of either play the music immediately or store it on his own computer for later use, or cancel the process.

(4) Also, Napster.no had a search-

function that allowed the users to inquire whether it was possible through the website to achieve the music that was wanted. The use of the website was free. It contained some advertising. If a user clicked on one of these, defendant would gain 1 NKR7 per click. All

7 ≈ 0.15 cents.

together, defendant has earned 500 NKR.

(5) It is not disputed that the music

Napster.no gave access to was illegal uploaded on the Internet. The owners of the rights had not given their consent, and the material is covered by the Copyright Act.

(6) In Fall 2001, the Norwegian

branch of record companies association – IFPI Norge – reacted against defendant’s business on the Net. Defendant was advised that the business was illegal and punishable. Defendant did not agree. However, after consulting with several lawyers, he deleted the music files in November 2001.

(7) TONO, NCB Nordisk Copyright

Bureau, EMI Norsk AS, BMG Norway AS, Sony Music Entertainment Norway AS and Universal Music AS filed a lawsuit against defendant at the court of Sør-Guldbransdal. IFPI Norge and Antipiratgruppen i Norge participated as help-interveners.8 Plaintiffs claimed 500,000 NKR in damages for the illegal linking to the music. The court of first instance decided the case on January 22 2003 (TSGUD-2002-203) with the following judgment:

“1. Frank Allan Bruvik d/b/a

Napster.no shall in damages pay the plaintiffs 100,000 NKR + interest, for the present 12 percent, from respite for payment until payment is done, see §3 first para of the Act on Delay-Interest.

2. No costs is awarded.” (8) The court of first instance held

links such as those used by Napster.no – often called direct links or deep-links – imply public presentation in the sense of the Copyright Act, and that the linking of he music files was a violation of the

8 Translator: Similar to Amica Curie in US.



Copyright Act. Defendant had in the eyes of the court “at least” acted negligent, and was liable to pay damages pursuant to §55 of the Copyright Act.

(9) Defendant made a request for

being allowed to appeal directly to the Supreme Court, which request was not granted. The appeal then went to Eidsivating lagmannsrett. IFPI Norge participated as help-intervener. During the preparation of the trial, the appellees further claimed that appellant had acted inconsistent with the general competing-provision in §1 first para of the Marketing Act – which claim had not been made before the court of first instance. The Court of Appeal granted permission to forward the new claim, which decision was reversed by the Supreme Court pursuant to §366 of the Civil Procure Code, see §367 and §375, see also Rt9-2004-60, as it regarded it as a new claim.

(10) Decision was handed out on

March 3 2004 (LE-2003-482)10 with the following judgment:

“1. Appellant is acquitted. 2. Second part of the decision of

the court of first instance is affirmed.

3. Each party to bear his own costs before the appeal court.” (11) The Court of Appeal held the

links only made a reference to places where the music already was made accessible for the public. The website could be compared with a “bulletin board that contained the direct addresses to the uploaded works”. The linking was not a publication in the sense of the Copyright Act. Neither could the conduct be contribution of others

9 Translator: Norwegian Case Reporter 10 Unofficial English translation at <www.linksandlaw.com/decisions-135-napster-norway.htm>.

publication. The illegal act that the uploaders did by putting the music on the Internet, was in the eyes of the appeal court finished and fulfilled, since it was uploaded. As the provision in §54 of the Act was formulated, the existed no contributory liability; the provision was not worded as a “condition-delinquency”11. The requirement of causality was not fulfilled, and appellant had to be acquitted.

(12) All plaintiffs have appealed the

decision of the Appeal Court to the Supreme Court, with IFPI Norge participated as help-intervener. The appeal relates to the evaluation of the evidence and the use of the law.

(13) There has been presented court-

testimony of defendant and of Cato Bjørn Strøm on behalf of TONO. There has been held court hearing where expert Håkon Styri and Øivind Svendby from IFPI has given evidence. Both has also made written depositions. Further has been submit evidence from the expert in the appeal court, Erling Maartmann-Moe. The case presented for the Supreme Court is in reality the same as it has been before the previous courts. Defendant has withdraw some few arguments that has no influence on the main questions of the case.

(14) TNO, NCB Nordisk Copyright

Bureau, EMI Norsk AS, MBG Norway AS, Sony Music Entertainment Norway AS and Universal Music AS has, with support from the help-intervener, summarized argued:

(15) TONO administer music works

for Norwegian right-owners pursuant to the Copyright Act. The right-owners assign their copyrights to TONO. TONO also handles performing rights of foreign right-owners through mutual agreements with similar organizations in

11 “tilstandsdelikt”.



foreign countries. Performing of the protected works to the public require consent from TONO. TONIO has handed over the right to produce and sell the music works to NCB. NCB functions like a shared central for rights of the Nordic countries and give consent to reproduction of music-works with accompanying text on records, tapes, etc. These two organizations claim damages pursuant to §55 first para of the Copyright Act, see §54 first para subsection a.

(16) The other appealing parties are

Norwegian record-producers that represent all rights to their own productions and production of their foreign parent companies or subsidiaries. Normally, the artists has transferred their rights to the producers. The parties agree taht the record producers had the rights to 75 percent of the uploaded music works.

(17) The rights of the performing

artists and the record producers is regulated in §42 respectively §45 of the Copyright Act. The provisions does not give sole and exclusive right to make something available to the public, but the protection is expanded by the penalty provision in §54 first para subsection d of the Act, which protect all making available to the public when the copies are produces in violation of §42 and §45. Liability for damages is given in §55, and arguments put forward are identical for the appealing parties. It is probable correct that only the artists from the EØS-area are protected, but there is no geographic limitation on the protection the producers have, see §58 second para, third full stop.

(18) The primarily main argument is

that the links at Napster.no to the music files imply a making available to the public pursuant to §2 and §54 first para subsection d. Publishing must be interpretated as a term on itself. Third

part of §2 is only a example of what the term embrace. The linking is illegal because there is no consent from the right-owners.

(19) The Supreme Court can use the

same facts as the appeal court. Defendant organized the homepage and saw to it that the net-addresses suggested by the users, was made directly accessible by the links.

(20) The Appeal Court rightfully

described how the links functioned. The court held that they only could be regarded as reference to other websites and compared them as addresses. Others have compared such links as footnotes in books and articles. However, the links are more than that. They gave directly access to the music files to be played and/or stored. A simple information of a web-address does not give such a direct access. Neither does footnotes give the reader access to the work mentioned in the reference. Defendant’s business can better be compared with offering a jukeboks. The later has been regarded as publishing music to the public, see Rt-1964-782.12

The sole and exclusive right to

publish a work is not a onetime right. It also apply to a re-communication of a previous publication of the work. It is has no consequence whether the users have been able to get access to the music at another web-address. Reference can be made to the Bedriftsmusikkdommen,13 Rt-1953-633, and the Swedish Morningtondommen,14 published in NIR-1980 page 258.

(22) Without the links the users

would normally not be able to find a music file which was uploaded on a computer connected to the Internet. The

12 Translator: 13 Translator: Business-music-case. 14 Translator: Morning-tone-case.



appeal court has not paid regard to the fact that it is first when a link is made to a file, that the users normally can get access to the file. Links is of vital importance for the use of the Internet.

(23) That the links gave direct

access to the music files – the possibility for immediate experience of the music – is the appealing parties main point.

(24) The decision of the Appeal

Court is inconsistent with the decision of June 17 2000 from Högsta domstolen15 in Sweden in the so-called Tommy Olsson-case, and with a Danish decision of April 20 2001 from Vestre Landsret.16 Both courts held that links giving similar access to works as in our case, implied making available to the public. The German Paperboy-case of July 17 2003 from the Bundesgerichtshof dealt with search engine and legal uploaded works. This case has no importance for our case.

(25) That the linking is regarded as

publishing, will have no significant negative effect for the information- and communication-business on the Internet. When a rights-owner uploads something on the Net, or gives consent to such, it must be interpretated as that owner has eo ipso given consent to linking to the uploaded material. Neither is there any problems in relation to the freedom of speech.

(26) Secondarily is alleged, that

defendant is liable for damages as he has intentionally contributed to the illegal conduct that the uploaders did by putting the music on the Internet.

(27) There is laid down the

following claim:

15 Translator: The Supreme Court of Sweden. 16 Translator: The Court of Appeals of Denmark, Western District.

“1. Defendant shall pay TONO, NCB Nordisk Copyright Bureau, EMI Norsk AS, BMG Norway AS, Sony Music Entertainment AS and Universal Music AS jointly damages determined discretionary by the court, but not lower than 100,000 NKR, and before two weeks from the decision has been served, plus interest pursuant to §3 first para, first full stop of the Act on Delay-Interest, for the present 8.75 percent, from the time for rightful payment until payment is done.

2. Defendant shall pay TONO,

NCB Nordisk Copyright Bureau, EMI Norsk AS, BMG Norway AS, Sony Music Entertainment AS and Universal Music AS their costs for the court of first instance, the appeal court and the Supreme Court, before two weeks after the decision has been served, plus interest pursuant to §3 first para, first full stop of the Act on Delay-Interest, for the present 8.75 percent, from the time for rightful payment until payment is done.” (28) Defendant has summarized

claimed: (29) The decisions of the appeal

court is correct. (30) The author has sole and

exclusive right to make the work public, however, the right only protects the concrete form of the work. Information in or about the work lays “in the free”. The public can freely mention, make comments from and make reference to the work. This is not in the sense of copyright changed because the work is made public in a illegal way. A lot of material on the Internet is protected by copyright, and if links is regarded as publication, will an important part of the linking – also to legal material – as a



starting point be forbidden. It will be problematically if interpretation require consent to linking when the work has been legally uploaded.

(31) Such links as dealt with in this

case, does not make use of anything but copyrighted work lays “in the free”. It is not the link that makes the work accessible, but easier accessible. The link is coded in such a way that the users browser can load the music file on the users own computer, provided that the browser understand the language the music file is uploaded by. The links in our case was coded in the simplest way and contained only address information. It was for the users to decide whether they would activate/use the links. There is not real difference between making such a link and inform of a web-address. As for the later, the user can put it into the address field, either by typing it or copy-paste it. The appealing parties has acknowledged that if so, then their does not exist publication/accessibility. There exists no criterion in copyright distinction between an address which is coded – and thus computer readable - and one which is not.

(32) Also, there exists a technology

by which the browser recognizes a web address, even if it is not coded as a link. If linking is regarded as publication, then it created huge problems for this new technology. Some types of links, “coded links” and “get-links” [hente-link], may possible have a copyright aspect, but there is not reason to go into this.

(33) The Department for Culture

and Church has circulated for comments a report with suggestions to amendments of the Copyright Act. It involves amongst others implementing of the Copyright Directive – “ Infosocdirektivet” – Directive from the European Parliament and the Council 2001/29/EU of 22. May 2001. In the

draft it is stated that offering a computer with Internet connection to the public at a public place, cannot be regarded as public performance, as opposite the situation for radio and TV sets. The Department finds it decisive that it to a larger degree is the user that decides what the computer-device shall be used for. A inference from the bigger to the less imply, that neither can the pekerne at napster.no be regarded as making something available to the public. Also here, it is the users that decides.

(34) The Paperboy-case dealt with a

advanced search engine and is a important and central decision for our case.

(35) There exists other ways to

protect right-owners. One possibility is given in §1 first para of the Marketing Act. The Copyright Directive increase the protection, and we must expect the directive will be implemented soon.

(36) Provided that the links cannot

be regarded as making something available to the public, the question arises whether defendant has contributed to the acts of the up loaders and therefore is be liable for damages. This defendant contests. There is no causality between the linking and the uploading of the music. Even if, the determine must be that when the links does not imply making something available to the public pursuant to the Copyright Act, can they neither in the next turn be regarded as illegal and provide liability for damages, because they increase the availability. It would be a circular argumentation. Defendant has not acted intentionally. Liability for negligence can be a violation of freedom of expression, compare Kyrre Eggen, Norges internasjonal forpligtelser på



ytringsfrihetens område,17 Special supplement no. 1 to NOU18 1999:27 (Ytringsfrihetskommisjonens innstilling), page 282 etc.19

(37) In any case, defendant must be

acquitted in relation to NCB, which only has had the right to copy transferred to it.

(38) Pursuant to §58 second para,

third full stop, is production of copies of sound protected also where it has been made outside Norway, but foreign artists are not similar protected. These are only protected to the degree of the foreign country rule, laid down in prescript by the Department of Culture and Church December 21 2001 pursuant to §59. Much support that also the producers can cite the foreign country rule to get protection.

(39) The following claim has been

made: “1. Defendant is acquitted. 2. Defendant and the public is

awarded the costs for the court of first instance, for the appeal court and the Supreme Court, plus interests pursuant to the law from 14 days after the respective court decisions was served and until payment is done.”

17 Translator: Doctor thesis by Kyrre Eggen: Norway’s international obligations in the area of free expression and speech. 18 Translator: Norges Offentlige Utredninger. 19 Translator: White Paper 27 of 1999 on proposed amendments to Article 100 on freedom of expression of the Norwegian Constitution] can be found at <http://odin.dep.no/jd/norsk/publ/utredninger/NOU/012005-020029/index-dok000-b-n-a.html>. Chapter 12 is a Summary in English and can be found at <http://odin.dep.no/jd/norsk/dok/andre_dok/nou/012005-020029/hov012-bn.html> (visited January 2005).

(40) I find the appeal has to be decided on basis of the second ground, liability for contribution, and that the appeal “fører frem”. Since the oral proceedings in overall has dealt with whether the links must be regarded as availability pursuant to the Copyright Act, will I discuss this, and especially in relation to §2. The analysis will also illuminate the reason for my choice of basis for my decision.

(41) Pursuant to §2, first para.,

copyright gives – under the limits of the Act - sole and exclusive right to control the intellectual property

(42) The preparatory report,

Ot.prp.20 no. 26 (1959-60), suggests that the sole and exclusive right to publish includes any possible way of making the work known to the public. The third para. is thus not meant as a legal definition of “making available to the public”. The term is technology neutral. I agree with this interpretation of the law and remark that in the statement to amendments to the Copyright Act the term is referred to as a superior term.

(43) The sole and exclusive right to

publish is not lost when the work is published for the first time. An example 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 Bedriftsmusikkdommen21 and the Swedish Morningtondommen,22 published in NIR-1980 page 258. With reference to Rt-1995-35, the Smartkortdommen23 there has in legal theory been made the requirement that the method that is used must give the public a fairly direct access to the work before one can speak of accessibility.

20 Translator: White Paper 21 Translator: Business-music-case. 22 Translator: Morning-tone-case. 23 Translator: Smart-card-case.



(44) It is not disputed that the

uploaders made illegal copying and illegal access available to the public. However, I stress that if the linking is regarded as access then it will embrace both legal and illegal material that has been laid out. The understanding of what is accessibility must be the same in both incidences.

(45) To illuminate the question

whether the linking in napster.no was accessibility to the musical work, the parties have thoroughly dealt with the technology behind the users’ possibilities of hearing music from links.

(46) It is stated by the appealing

parties that the linking gives independent and direct access to the music. A on his side has claimed that the links only contained an address to a website, and by clicking the link the music was stored temporarily on the user’s own computer. Only at this time could the user play, or alternatively store the music file for later use. A part of the theory the parties have made reference to points out that is can be of importance whether the user by clicking a link continued “being on” napster.no, or whether he has “moved” to the website that the links points at. In addition, there has been an issue of distinguishing between direct links/deep-linking on one hand and on the other site surface-links – links to the website’s homepage.

(47) For me it is not decisive

whether it is one or the other type of link, nor if the user in a technical sense “is found to be” on his own computer, on napster.no, or whether he has “moved” to the website that is linked to. It is difficult to see why this should be decisive for regarding the work being accessible to the public in sense of the Copyright Act. The decisive factor must be how the technique works – if and

how access is given. It may be possible to find links that are coded in such a way that they must be said not to have been accessible [to the public], but this has not been particularly illuminated to the Supreme Court.

(48) There can be no doubt that by

making a web-address known by reproducing it on the Internet is accessibility.

(49) When the Copyright Act was

enacted in 1961 the problem of today was not present. What makes the evaluation of the principal statement difficult is exactly the technical possibilities that the Internet and different software gives. Some efforts have been made by legislators as to evaluate liability etc. related to this new technique. I mention the implementation of the E-commerce Directive, see Ot.prp. no. 4 (2003-2004)24 and the work on the revision of the Copyright Act. But liability in connection with linking has not really been dealt with.

(50) The Swedish Tommy Olsson

case dealt also with sound files made accessible through links on Olsson’s homepage. Högsta domstolen25 regarded this as “public presentation”. The case was a criminal case, and Olsson was acquitted because public presentation of a sound recording was not covered by the recording producer’s sole and exclusive right, and it was the record producers that were offended in the case.

(51) The opinion of the German

Supreme Court in 2003 in the Paperboy case, which I have mentioned before, dealt with another issue and facts, but

24 Translator: White paper from Odelstinget [Second Chamber of the Norwegian Parliament] on the proposal on implementing the EU E-Commerce Directive into Norwegian Law. 25 Translator: The Swedish Supreme Court.



clearly pulls in another direction. The case was presented to the26 Supreme Court in translation by state certified translator Nils Nordang. The case dealt with material that legally was placed on the Net, as opposed to the present case. On the basis of German law, the act of making a direct-link to such material was not regarded as a violation of the copyright law, but rather as a reference to the work in a way that just made access easier for the net-users to get a work that already was accessible for the users. Regarding the linker’s operation, the translation states in part:27

“He does not himself make the

protected work accessible for downloading by the public and neither does he himself communicate the work to third-parties on request. For a user that does not yet know the URL or a precise description for the reference to the website on the Internet, the access to work is indeed first made possible by the help of the hyperlink and thereby in the literal sense is the work made accessible; but this is not any different than a reference to a publication in a footnote in a printed paper or on a website.”

(52) I remark that the designation

“URL” indicates the address of a website on the Internet.

(53) The Copyright Act has its

background in Nordic co-operation, and the consideration of Nordic unity is important for the evaluation of our case, although the decision from the Högsta domstolen has been criticized and in legal literature the opinions have been divided on the question on liability for linking. On its face the link can appear to be access to the work. The Swedish

26 Translator: Norwegian. 27 Translator: HERE re-translated into English from the Norwegian decision, not the original German decision.

decision did not discuss another issue which to me is a special problem – that the music files also could have been reached by information of the web-addresses on napster.no. Even though these web addresses considered as text are complicated, to copy them and paste them into the address-field is easy. It would give the same direct access.

(54) When illegal accessibility can

be combined with both punishment and civil liability there needs to be a reasonable sufficient reason why use of one method is affected but not the other. The appealing parties have not been able to give any sufficient reason for this, and I find it extremely difficult. Furthermore, the Copyright Act was not written with thought of the technical evolution we have seen in the last few years, with the result that the Act at present is under reconsideration in the Department with the aim of amendments in part because of this.

(55) The close analogy between

direct linking to a website and giving information of a website’s address is further illustrated by the development of accessible software in relation to the Internet. For both e-mail and ord-processing can be found software that recognizes an Internet address. Since it is so much easier just to click on a link, the software automatically makes an address available through a click, that is, it converts it to a direct-link. Thus, pure and simple this is how references and footnotes that state a net-address can be changed by the software to direct-links. This could create problems if a reference on this basis should be regarded as accessibility.

(56) The parties have tried to

illuminate the consequences of regarding the linking as accessibility. The starting point must be that linking, both to legal and illegal uploaded material, only can take place with the



owner’s consent. The appealing parties have referred to views in theory which hold that placing something on the Internet must be regarded as consent to linking. As an example, I quote professor dr. juris Ole-Andreas Rognstad in Festskrift til28 Mogens Koktvedgaard (2003) page 472:

“There is no reason for

requiring the originator’s consent to this in general. The problem can be solved in the same way as the “consumption-problem”, through a copyright default rule: Consent for use of the work is regarded as covering the normal and usual linking to the pages. Here it is a question of the more definite limits of the default rule. However, in this connection that is another issue.” (57) Much can be achieved by

reading consent into the normal situation, but there is also a question of defining limits that can be bases for both doubt and disputes. Therefore, consideration of the consequences is a contributing factor for me to hold that the case must be decided on the subsidiary basis. This points precisely to linking of illegal material, and it is such linking the appealing parties seeks to stop or at least reduce.

(58) I now deal with the subsidiary

basis. (59) Pursuant to §55 first para. of

the Copyright Act, compensation for harm in the sense of §54 can be given on the basis of the ordinary damage rules. Aiding is punishable after §54 second para. It is clear [from the text] and also from the preparatory work to the law that damages can be awarded even if there is no basis for criminal liability. The usual requirements for evidence in the field of damages is being used, not

28 Translator: Homage Volume to

the strict requirements for evidence of both objective and subjective facts in the criminal law.

(60) The appealing parties have

alleged that A with intent has contributed to the accessibility of the music on the Internet.

(61) I first deal with the claim from

TONO29 and NCB.30 The provision in §54 first para. letter a covers amongst others violation of the protection of the copyright pursuant to §2.

(62) The intermediate court held

that the uploaders’ illegal acts were completed when the music was uploaded and that there thereby was no basis for liability for contribution. I do not agree. The criminal provision targets “to violate provisions that protects copyright”,31 and here the uploader’s violation consists of making the music accessible. It cannot be derived from the wording that the violation ceases when the uploading is finished in the technical sense, and to me such an understanding is very unnatural. In my opinion the violation of copyright continues as long as the uploader lets the music stay on the Internet. I add that it would be strange if the [statute of] limitation for such a violation should begin to run from the time the uploading is finished.

(63) A has alleged that if the linking

cannot be regarded as accessibility, then there should not be any basis for liability for aiding. I do not agree with this argumentation. It is not a requirement in criminal law that the aiding act in itself has to be illegal. The linking has increased the effect of the uploader’s acts by increasing the accessibility to the

29 Translator: The Norwegian organization for collecting copyright fees for music and distributing it to the respective copyright owners. 30 Translator: Norwegian Copyright Bureau. 31 “å overtre bestemmelser gitt til vern for opphavsretten”.



music. A himself has explained that the users generally could not find the music files without the links.

(64) It is of no importance to the

issue of aiding whether the uploaders had knowledge of A’s operation, see Johs. Andenæs, Alminnelig strafferett32 (5 ed., 2004) page 327.

(65) Whether the linking should be

regarded as aiding requiring a remedy of damages must depend on an evaluation of the specific facts. There must be drawn a limit from a general “unlawful” reservation. I refer to Andenæs page 154 and mention briefly that he states that the term unlawful often can be translated to include “improper”, “unwarrantably”, “blameworthy” or similar characterizations.

(66) The principal and the aider

shall be judged on basis of their own conditions. This was held already in Rt-1908-790. I refer to Andenæs page 338. I can also refer to Erling Johannes Husabø, Straffeansvarets periferi33 (1999) especially page 255. He notes that “aiders can be prosecuted in Norway both in the case where the aiding act is “done” in the country (§12 first part of the Penal Code) and were “the result has happened in or is aimed” at this county ((§12 last part)”. Thus, it is of no importance if the uploaders could be punished pursuant to the law of the country in which they were residing - something that is not stated in the record.

(67) In my opinion, A’s acts are to

be regarded as aiding that is both intentional and extremely blameworthy. His aim with napster.no was exactly to give others access to the music. The

32 Translator: General Criminal Law, a treatise by a famous Norwegian Law Professor. 33 Translator: The Periphery of the Liability to Punishment.

homepage of the webpage shows this. The introduction stated:

“Welcome to napster.no You are at Norway’s largest and

best website for free music. Here you can download as much music you want.”

(68) There was uploaded popular

music by well-known artists. Amongst others, links were made to music that was on hit lists like Norway Top 20 and the VG-list. A has without doubt known the music was uploaded without consent from the copyright owners. He has acted with intent and cannot be found to have been mistaken of the law and that he was making criminal acts.

(69) Thus, A must be liable for the

damage TONO has suffered, first and foremost because some of the users, that otherwise would have bought CDs, got the music though downloading. Causality between his acts and TONO’s loss exists without doubt. I add that liability for damages in this case is in no way inconsistent with freedom of speech or expression.

(70) I do not find reason to deal with

the issue that A should not be liable towards NCB. Damages in connection with infringement of copyright is measured by one figure. It is then up to TONO and NCB to divide the total between themselves, as they arranged.

(71) Finally I note, that is clear and

indisputable that as for TONO and NCB there exists no problem in relation to copyright protection on the international plan. Through precept to the Copyright Act of 21 December 2001 no. 1563, the foreign country rule, in pursuance of §59 of the Act, foreign works are protected as if they were Norwegian.

(72) With regard to creative artists

and producers, they are protected in



Chapter 5 of the Copyright Act, especially §42 and §45, which does not give a monopoly for public presentation of recordings. In the amendment to the Copyright Act of 23 December 1988 no. 101 was as §54 first para. letter d established a criminal – and thus also damages – protection for creative artists and other property owners pursuant to chapter 5 of the Act, through a ban against making available to the public the works and recordings mentioned amongst others in §42 and §45, when the copies are produced in violation of these provisions.

(73) It follows, as I have previously

mentioned, that the uploaders of music have made it available to the public, and that A must be regarded as having aided this. However, the question arises whether all the creative artists and producers involved in the case, belong to the group of property owners that the Act protects.

(74) As §54 first para. letter d is

related to the illegally produced copies, this must be interpreted as such copies which can be proscribed by the Copyright Act. Thus, it must be a requirement for liability for punishment – and liability for damages – that the Copyright Act gives the property owners protection against the production of copies which was done by the uploaders. A geographical limitation of property owners covered by chapter 5 of the Act applies pursuant to §58 and the foreign country rule. Prescript §6-1 first para. provides that the Act shall apply similarly to creations and works embraced by chapter 5 of the Act for persons that are citizens of or domiciled in a country inside the European Union, and for a corporation with office inside E.U.

(75) A has not denied that if he is

regarded as liable for damages to TONO, he will also be liable to artists

and record-producers embraced by §58 of the Copyright Act or the foreign country rule. As for artists that do not have citizenship in or are domiciled in the E.U. and as for producers outside the E.U. he asserts these are not covered by the protection.

(76) I do not agree as for the record-

producers. §58 second para., third sentence states:

“The provision in §45

concerning the right to make copies shall apply for the benefit of all sound and film fixations.” (77) When the question is the

producers protection against production of copies pursuant to §45, there exists no geographical limitation as to who is covered. Thus, the uploaders’ produc-tion of copies is covered by the Copyright Act, and A has aided the uploaders to make available copies that were produced in violation of §45.

(78) The provision in §58 second

para., third sentence does not cover artists. This must mean that chapter 5 of the Act only protects them against recording of their presentations to the extent provided by other parts of §58 or by the foreign country rule. The provisions of chapter 5 of the Act which the property owners embrace also limit the scope of §42. Since §54 first para. letter d covers publication of recordings as mentioned in §42, I cannot see other than this only covers those artists that are protected by chapter 5. As §45 does not cover artists, I can not see that they can plead that the recordings are violating this provision.

(79) I have reached the opinion that

A’s liability for damages to the artists must be limited to those artists that are embraced by §58 or by the foreign country rule. It has been asserted by the record companies that even if such a



limitation has to be made, this gives no reason to reduce the total amount of damages decided by the trial court as the exclusion must be regarded as moderate as reasoned by the trial court. I agree.

(80) The case has raised

fundamental questions, which are of first impression for the Supreme Court. I find the costs should not be awarded for any of the courts.

(81) I vote for the following

decision: 1. The decision of the court of

first instance is affirmed. 2. No cost is awarded in relation

to the cases before the appeal court and the Supreme Court. (82) Judge Oftedal Broch: I am in

overall and in the decision with first voting.

(83) Judge Mitsem: Likewise. (84) Judge Bruzeluis: Likewise. (85) Judge Aasland: Likewise. (86) According to the votes the

Supreme Court made the following

decision:

1. 1. The decision of the court of first instance is affirmed.

2. No cost is awarded in relation to the cases before the appeal court and the Supreme Court.

END of Document

Norwegian Supreme Court decision of 27 January 2005 in the "Norwegian Napster" Case

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Transcript of Norwegian Supreme Court decision of 27 January 2005 in the "Norwegian Napster" Case