Telenor: Two battles won, but what about the war?

Readers of this weblog may recall the refusal of a Norway District Court last November to order ISP Telenor to block its customers' access to The Pirate Bay's file-share website (see earlier post on the 1709 Blog here). Well, here's the sequel, supplied by Telenor's legal representatives, the illustrious law firm of Wiersholm, Mellbye & Bech. Read on:

"Background

During the spring of 2009 the music and film industry submitted a preliminary injunction suit before the Norwegian courts, demanding the ISP and telecom provider Telenor would to shut down access to The Pirate Bay website for its customers. The Pirate Bay will be familiar to many readers, it being the Swedish website which allows users to upload, search for, and download torrent files. The BitTorrent-technology allows torrent files to be used for peer to peer file sharing, meaning that the file sharing takes place directly between the downloaders. The Pirate Bay does not store any of the content downloaded by the users of the website.

The Swedish court held that the persons behind The Pirate Bay were guilty of copyright infringement. The Pirate Bay provides a website to the file sharers with “well-developed search features, simple upload and storage” features, and “by arranging contacts” between individual “pirates” through the “site linked tracker”, the Swedish court held that the defendants facilitated and promoted copyright infringements.

The Norwegian injunction case was based on a different fact to that in the Swedish case. In short, the music and film industry claimed that Telenor contributed to illegal copyright infringements by allowing its customers to access The Pirate Bay.

Telenor stated that even though it does not support and has no sympathy whatsoever with copyright infringers in general, and with The Pirate Bay in particular, the mere act of providing the infrastructure of the Internet does not render it liable for copyright infringements such as illegal file sharing. Telenor explained that if it, as an ISP, were to be obliged to block access to The Pirate Bay, it would in principle be obliged to block any other website which is deemed to store infringed content. Telenor further held that the current case is a not another “The Pirate Bay case”, but a case which deals with the fundamental question of Internet censorship.

The findings of the court

In order to obtain a preliminary injunction under Norwegian law, the claimant must substantiate both the merits of the claim (in this case that an infringement takes place), and the grounds for injunction (postponing a regular ruling will cause the claimant substantial inconvenience or financial loss).

The District Court ruled in favour of Telenor and threw out the music and film industry’s application for an injunction in its decision of 6 November 2009. The music and film industry appealed the decision to the Borgarting Court of Appeal. On 10 February 2010 The Borgarting Court of Appeal upheld the decision by the District Court and dismissed the appeal.

The Borgarting Court of Appeal considered the merits of the claim in light of both regulations and case law from the EC and the Nordic countries in addition to the Norwegian legislation. It pointed out that Telenor neither provides internet access to The Pirate Bay, nor does it host The Pirate Bay website. Telenor is therefore a mere provider of technical infrastructure and does not illegally contribute to the illegal file sharing performed by users of The Pirate Bay. The court further stated that the substantive test is not whether or not there is a causal relationship between the service and the infringement, but whether or not Telenor commits an unlawful act by allowing its customers to access The Pirate Bay. The court found that neither article 8.3 of Directive 2001/29/EC nor any Norwegian legislation establish a basis for such a claim. Neither did the court find case law relating to liability for persons deliberately linking to infringed content to be applicable through the use of analogy in cases relating to ISP liability.

Two battles won – but is the war over?

The decision is not yet in force. There is therefore a possibility that the case will be appealed to the Norwegian Supreme Court. Further, since the decision from The Borgarting Court of Appeal is a decision in a case regarding a preliminary injunction, the claimants have the possibility of filing a regular law suit against Telenor.

In Wiersholms’ opinion there is every reason to disapprove of the parasitism of websites like The Pirate Bay, which obviously are designed to facilitate illegal downloading of copyright material. However, we do agree with the courts that there is currently no legal basis for claims such as the one brought on by the music and film industry. Further, Wiersholm disagrees with the music and film industry’s strategy of aggressively pursuing the technical service providers in order to battle illegal file sharing. Such a strategy raises a whole number of principled matters, in particular the then situation of the technical service providers filling the roles as police, judge, and jury. In addition there is the unavoidable fact that if access to The Pirate Bay is blocked, another alternative for illegal downloading will surely exist the morning after.

While this case has served its purpose of being the Nordic test case, the final word in the matter is yet to be said".

Telenor was represented by Wiersholm’s IP litigation team, lead by John S Gulbrandsen and Rune Opdahl. A full-text English translation of the decision is available here and at Wiersholm’s IP and IT law website.