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

org” case

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 8458
www.Frederiksberg.dk
2. Foreningen af danske Videogramdistributører
[Association of Danish Video-distributors] as
agent for Buena Vista A/S et al. *5
*11 Transcript of records of the court 3. Gyldendalske Boghandel Nordisk Forlag A/S
4. JP/Politikens Hus A/S

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

in courtroom Y, Blegdamsvej.
DMT2 A/S2
On the bench: Duty judge Poul Bisgaard-Frantzen.
Attorney-at-law Jakob Plesner Mathiasen represented
Case: FS 14324/2007 claimants.

Attorney-at-law Morten Agervig Helles represented

1. IFPI Denmark as agent for Aller International defendant.
A/S et al. *4

1 2
Number after a bold “*” state the page of the original deci- Translator: In Denmark, the company is also called
sion. “Tele2”. From 12 July 2007, it is part of Telenor.
1 of 5
 Unofficial Translation of the Danish case IFPI vs. DMT2 – so-called “thepiratebay.org” case
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 24
January 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 material
from 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.
2 of 5
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 next
footnote.
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
 Unofficial Translation of the Danish case IFPI vs. DMT2 – so-called “thepiratebay.org” case
thus article 14 of the E-commerce Act does not rule
out 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 an
independent 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 copyrighted
music. 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 not
have 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).
3 of 5
that there is no distinction between blocking access to
the 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 2000
in 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>.
 Unofficial Translation of the Danish case IFPI vs. DMT2 – so-called “thepiratebay.org” case
decision of 10 February 2006, published in UfR
2006.1474 H, there shall be issued an injunction in this
case.
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 film
and 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-
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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 the
material 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.
 Unofficial Translation of the Danish case IFPI vs. DMT2 – so-called “thepiratebay.org” case
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 was
stored 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).
5 of 5
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 which
the 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-pages
and 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>.