Direct Connect-oslo Eng

Oslo Trial Court decision of 27 May 2005 in the Direct-Connect Case dealing with file sharing
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Unofficial Translation of the “Direct connect-Oslo” case Translation by Senior Researcher Henrik Spang-Hanssen and Prof. Tyler Ochoa, Santa Clara University School of Law. Decision of 27 May 2005 from Oslo Trial Court Citation: Toslo 2004-94328 On the Bench: deputy judge Johan Berg together with expert lay-judges senior-engineer Terje Knudsen and college-teacher Stein Marthinsen. Prosecuting authority (police solicitor Espen Skjerven) vs. A. Copyright law: A established three file-sharing services for music. After an extremely thoroughly deliberation on whether there was evidence of intent and of acting as an accessory, the court held the services violated copyrights, performing artists rights and phonogram-producers exclusive rights. An exemption from liability under the E-commerce Act was not present. A was born … [in] 1969 and lives in X. He is single, without supporting obligations, does not own property, and works at a gas station. By indictment from Økokrim1 he is charged at Oslo Trial Court for violations of Claim I. The Copyright Act of May 12, 1961 no. 2 §54, first para., subsection a, see also second, third and fourth paras. that penalizes a person who, under particularly aggravating circumstances, violates this law, by infringing provisions laid down for the protection of copyright in or in accordance with Chapters 1 and 2, or who is an accessory to such. In assessing whether particularly aggravating circumstances exist, importance shall primarily be attached to the damage done to the copyright holder and others, the 1 Translator: Special national prosecution section on Economic Crimes profit gained by the offender, and the general extent of the infringement. Any attempt at a willful infringement as specified in paras. 1-3 may be punished in the same way as the completed crime. See §2 first, second and third paras. under which, subject to the limitations laid down in this Act, copyright confers the exclusive right to dispose of a work by producing copies thereof and by making it available to the public, be it in the original or an altered form, in translation or adaptation, in another literary or artistic form, or by other technical means. The transferring of a work to any device by which it can be reproduced shall also be considered a production of copies. A work is made available to the public when it is performed outside private premises, or when copies of the work are offered for sale, rental or lending, or otherwise distributed or displayed outside such premises. Direct connect-oslo_ENG – page 1 Unofficial Translation of the “Direct connect-Oslo” case See §1 second para. nos. 4 and 5 under which a literary, scientific or artistic work includes musical works, with or without words, and cinematographic works. a) The basis is the following act or contribution: During the period of July 2003 through May 2003, from his residence, .. in Y, with use of his own computer with IP-address 000.000.000.0 and/or from another place, A copied and made public, without the consent of the copyright owners, a large number of music files and movie files, in the capacity as user/operator with the call-name “smoothmoves”, “Tor”, and “cream”, in several Direct Connect file-sharing networks connected to a hub with the name of Jazzhouse, Lushlife and Jazzgroove, as described in post Ib, Ic and Id. b) The basis is the following act or contribution: During the period from April 17 2004 through May 12 2004, with use of his own computer with IP-address 000.000.000.0 and domain name jazzgroove.sytes.net that was placed in NetCom AS’s locations in Sandakerveien 140 in Oslo, he contributed as owner and/or administrator of an open Direct Connect hub with the name of Jazzgroove, so that a considerable number of persons (at least 300 users at the same time) could make available a considerable number of music files and movie files between these persons and/or an unknown number of persons, without the consent of the copyright owners. c) The basis is the following act or contribution: During the period from April 10 2004 through May 12 2004, with use of his own computer with IP-address 000.000.000.0 and the domain name lushlife.sytes.net that was placed in NetCom AS’s locations in Sandakerveien 140 in Oslo, he contributed as owner and/or administrator of a Direct Connect hub with the name of Lushlife, so that a considerable number of persons (at least 1,000 users) could make available a considerable number of music files between these persons, without the consent of the copyright owners. d) The basis is the following act or contribution: During the period from July 2003 through December 2003, with use of a computer with IP-address 000.000.000.0 and the domain name tu.X25.no that was placed in NetCom AS’s locations in Sandakerveien 140 in Oslo, he contributed as owner and/or administrator of a Direct Connect hub with the name of Jazzhouse, so that approximately 50 persons made available a considerable number of music files between these persons, without the consent of the copyright owners. Claim II. Copyright Act of May 12, 1961 no. 2 §54, first para. subsection d, see also second, third and fourth paras. that penalizes a person who, under particularly aggravating circumstances, violates this law, by offering or otherwise making available to the public works or fixations as specified in §45, when the copies have been produced in violation of that section, or who is an accessory to such. In assessing whether particularly aggravating circumstances exist, importance shall primarily be attached to the damage done to the right holder and others, the profit gained by the offender, and the general extent of the infringement. Any attempt at a willful infringement as specified in paras. 1-3 may be punished in the same way as the completed crime. See §45 first para. under which sound fixations and films shall not be published until 50 years have elapsed since the expiry of the year in which such fixation or film was made, without the consent of the producer; nor shall copies be made before such time without the consent of the producer. If the fixation is published during this period of time, the term of protection shall subsist for 50 years after the Direct connect-oslo_ENG – page 2 Unofficial Translation of the “Direct connect-Oslo” case expiry of the year in which the fixation was first published. a) The basis is the following act or contribution: At the time and place mentioned in # Ia, he behaved as described, and the material was copied without the consent of the property owners. b) The basis is the following act or contribution: At the time and place mentioned in # Ib, he behaved as described, and the material was copied without the consent of the property owners. c) The basis is the following act or contribution: At the time and place mentioned in # Ic, he behaved as described, and the material was copied without the consent of the property owners. d) The basis is the following act or contribution: At the time and place mentioned in # Id, he behaved as described, and the material was copied without the consent of the property owners. Claim III. Copyright Act of May 12, 1961 no. 2 §54, first para. subsection d, see also second, third and fourth paras. that penalizes a person who, under particularly aggravating circumstances, violates this law, by offering or otherwise making available to the public works or fixations as specified in §42, when the copies have been produced in violation of that section, or who is an accessory to such. In assessing whether particularly aggravating circumstances exist, importance shall primarily be attached to the damage done to the right holder and others, the profit gained by the offender, and the general extent of the infringement. Any attempt at a willful infringement as specified in paras. 1-3 may be punished in the same way as the completed crime. See §42 first para. subsection a and second para. under which a performing artist’s performance of a work may not without the consent of the artist be fixed on film or on a device which can reproduce the performance. If a fixation of a performing artist’s performance is made as specified in the first paragraph of subsection a, no copies shall be made of it, nor shall it be published,, without the artist’s consent,, until 50 years have elapsed since the expiry of the year in which the performance took place. If the fixation is published during this period, the term of protection shall subsist for 50 years after the expiry of the year in which the fixation was first published. a) The basis is the following act or contribution: At the time and place mentioned in # Ia, he behaved as described, and the material was copied without the consent of the property owners. b) The basis is the following act or contribution: At the time and place mentioned in # Ib, he behaved as described, and the material was copied without the consent of the property owners. c) The basis is the following act or contribution: At the time and place mentioned in # Ic, he behaved as described, and the material was copied without the consent of the property owners. d) The basis is contribution: the following act or Direct connect-oslo_ENG – page 3 Unofficial Translation of the “Direct connect-Oslo” case At the time and place mentioned in # Id, he behaved as described, and the material was copied without the consent of the property owners. Claim IV. Copyright Act of May 12, 1961 no. 2 §54, first para. subsection b, see also third para. that penalizes a person who, under particularly aggravating circumstances, violates this law, by infringing provisions laid down in or in accordance with Chapter 5. In assessing whether particularly aggravating circumstances exist, importance shall primarily be attached to the damage done to the right holder and others, the profit gained by the offender, and the general extent of the infringement. See §45 first para. under which sound fixations and films shall not be published until 50 years have elapsed since the expiry of the year in which such fixation or film was made, without the consent of the producer; nor shall copies be made before such time without the consent of the producer. If the fixation is published during this period of time, the term of protection shall subsist for 50 years after the expiry of the year in which the fixation was first published. The basis is the following act: At the time and place mentioned in # Ia, he behaved as described. Claim V. Copyright Act of May 12 1961 no. 2 §54, first para. subsection b, see also third para. that penalizes a person who, under particularly aggravating circumstances, violates this law, by infringing provisions laid down in or in accordance with Chapter 5. In assessing whether particularly aggravating circumstances exist, importance shall primarily be attached to the damage done to the right holder and others, the profit gained by the offender, and the general extent of the infringement. See §42 first para. subsection a and second para. under which a performing artist’s performance of a work may not without the consent of the artist be fixed on film or on a device which can reproduce the performance. If a fixation of a performing artist’s performance is made as specified in the first paragraph of subsection a, no copies shall be made of it, nor shall it be published,, without the artist’s consent,, until 50 years have elapsed since the expiry of the year in which the performance took place. If the fixation is published during this period, the term of protection shall subsist for 50 years after the expiry of the year in which the fixation was first published. The basis is the following act: At the time and place mentioned in # Ia, he behaved as described. Aggravating circumstances are claimed to be present, based on the considerable number of music files and movie files which were made or were to be made available during the time-period, because the act had been done or was about to be done as part of an organized file-sharing network, because of the large number of users that had or could have used the file-sharing networks, the damage done to the rights holders, and the extent of the violations. The charge is reported as it was pursuant to the prosecutor’s record. Trial was conducted on 18, 19, 20, 25, 26 and 27 of April. Defendant was present and denied the claims. The trial was adjourned on April 20-25 as the defendant’s counsel had received new evidence on the afternoon before. The defense attorney found it difficult to review the material and had only the opportunity to get a superficial impression. [He argued that] Witness no. 2 should not be questioned before there had been time to review the material thoroughly. The court found several considerations were present. There was the consideration of Direct connect-oslo_ENG – page 4 Unofficial Translation of the “Direct connect-Oslo” case due process, see article 6 of EMK2 and §293 second para. of the Penal Code, and furthermore the court’s ex officio duty to secure all available information was present. The court could not overlook that the new evidence - conversation-logs from the Net – could be of importance as evidence. The court found the only alternative was to adjourn until April 25th. The court heard six witnesses, and the extent of documentation presented to the court was as mentioned in the records of the court. The prosecutor asserted that the accused should be sentenced as claimed to thirty days of imprisonment and nineteen hours of community service over ninety days, or alternatively to ninety days of imprisonment, deducted by two days in custody. In addition, the prosecutor sought confiscation. The defense attorney argued for acquittal, or alternatively for a mild sentence. The remarks of the court: The case raises several questions of a criminal nature that seem to be of first impression for a Norwegian or a foreign court. Therefore the court finds it relevant and necessary to give a short description of the Internet and the technology which has been used in the case at issue. The Internet is an international network of computers that can communicate with each other by means of technical standards and protocols. The Internet had its origin as an American military research project and was originally a network for research and education. Since then has the use of the Internet expanded to include commercial services. Today, the Internet exists as anarchist and uncensored both in structure and contents. The closest one comes to a governing body of the Internet is ICANN, the Internet Corporation for Assigned Names and Numbers. ICANN seems to be the only control or administration of the Internet. ICANN is a non-commercial organ that covers a broad coalition of Internet users from commercial, technical and 2 Translator: European Human Rights Convention. academic environments. ICANN was originally selected by the U.S. Government to work as a global consensual organ with the purpose of coordinating the assignment of Internet addresses, and working out the protocol-parameters and administration of the most central machines of the infrastructure of the Internet addresses. The World Wide Web is an Internet service based on multimedia documents. Information is graphically presented as pages on the screen (webpages). These pages are called homepages if they are the main page on the website of a person or a firm. The homepage consists of text and pictures, but can also consist of other documents, objects or webpages. It is the development of the World Wide Web that has had the largest impact on the nearly explosive growth of commercial use of the Internet. It is possible to present a firm, its products and services on the Internet with use of sound and pictures/movies. Further, it is possible to offer customers direct ordering of goods and services via the net. The World Wide Web has become a very important public relations tool for most types of businesses. The address-system of the Internet is shared by all services. For a cybernaut to use a certain service, he or she must find the address of that service. Every computer connected to the Internet is identified by a so-called IP-address (Internet Protocol). An IP-address is expressed by four groups of digits with a period between each group. Because it is difficult to remember such numbers, a hierarchical system was constructed: the Domain Name System (DNS). In this system, each computer that is connected the Internet gets a domain name, which consists of letters and words. The DNS converts the text-based address to its numerical equivalent. Therefore, the domain name is the entry to a certain place on the World Wide Web and it can be compared with an address or a phone number. The domains are a specification of the area or the category that the actual computer belongs to and consist of a standardized suffix of the address. Examples of international top-level domains are “com” for Direct connect-oslo_ENG – page 5 Unofficial Translation of the “Direct connect-Oslo” case “commercial”, “edu” for “education”, “gov” for “government”, “net” for “network” and “org” for “organization”. Examples of national top-level domains are “no” for Norway, “to” for Tonga and “dk” for Denmark. The counsel for the defense has presented some American case law. The most relevant case for this court is “MetroGoldwyn-Mayer v. Grokster”, decided by the U.S. Courts of Appeals for the Ninth Circuit, in which on page 11731 is written (the court’s translation3): To analyze the legal issues properly, a rudimentary understanding of the peer-to-peer file-sharing software at issue is required-particularly because peer-to-peer file sharing differs from typical internet use. In a routine internet transaction, a user will connect via the internet with a website to obtain information or transact business. In computer terms, the personal computer used by the consumer is considered the "client" and the computer that hosts the web page is the "server." The client is obtaining information from a centralized source, namely the server. In a peer-to-peer distribution network, the information available for access does not reside on a central server. No one computer contains all of the information that is available to all of the users. Rather, each computer makes information available to every other computer in the peer-topeer network. In other words, in a peer-to-peer network, each computer is both a server and a client. Because the information is decentralized in a peer-to-peer network, the software must provide some method of cataloguing the available information so that users may access it. The software operates by connecting, via the internet, to other users of the same or similar software. At any given moment, the network consists of other users of similar or the same software online at that time. Thus, an index of files available for sharing is a critical component of peer-to-peer file-sharing networks. At present, there are three different methods of indexing: (1) a centralized indexing system, maintaining a list of available files on one or more centralized servers; (2) a completely decentralized indexing system, in which each computer maintains a list of files available on that computer only; and 3 Translator: into Norwegian and without footnotes – HERE copied from the original American court decision at 380 F.3d 1154, 1158-60 (3) a "supernode" system, in which a select number of computers act as indexing servers. The first Napster system employed a proprietary centralized indexing software architecture in which a collective index of available files was maintained on servers it owned and operated. A user who was seeking to obtain a digital copy of a recording would transmit a search request to the Napster server, the software would conduct a text search of the centralized index for matching files, and the search results would be transmitted to the requesting user. If the results showed that another Napster user was logged on to the Napster server and offering to share the requested recording, the requesting user could then connect directly with the offering user and download the music file. Under a decentralized index peer-to-peer file-sharing model, each user maintains an index of only those files that the user wishes to make available to other network users. Under this model, the software broadcasts a search request to all the computers on the network and a search of the individual index files is conducted, with the collective results routed back to the requesting computer. This model is employed by the Gnutella software system and is the type of architecture now used by defendant StreamCast. Gnutella is open-source software, meaning that the source code is either in the public domain or is copyrighted and distributed under an opensource license that allows modification of the software, subject to some restrictions. The third type of peer-to-peer file-sharing network at present is the "supernode" model, in which a number of select computers on the network are designated as indexing servers. The user initiating a file search connects with the most easily accessible supernode, which conducts the search of its index and supplies the user with the results. Any computer on the network could function as a supernode if it met the technical requirements, such as processing speed. The "supernode" architecture was developed by KaZaa BV, a Dutch company, and licensed under the name of "FastTrack" technology. Both Grokster and StreamCast initially used the FastTrack technology. However, StreamCast had a licensing dispute with KaZaa, and now uses its own branded "Morpheus" version of the opensource Gnutella code. StreamCast users connect to other users of Gnutella-based peer-to-peer filesharing software. Both Grokster and StreamCast distribute their separate softwares free of charge. Once downloaded onto a user's computer, the software enables the user to participate in the respective peer-to-peer file-sharing networks over the internet. Users of the software share digital audio, video, picture, and text files. Some of the files are copyrighted and shared without authorization, others are not copyrighted (such as public domain Direct connect-oslo_ENG – page 6 Unofficial Translation of the “Direct connect-Oslo” case works), and still others are copyrighted, but the copyright owners have authorized software users in peer-to-peer file-sharing networks to distribute their work. The Copyright Owners assert, without serious contest by the Software Distributors, that the vast majority of the files are exchanged illegally in violation of copyright law. (42) The preparatory report, Ot.prp.10 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 Bedriftsmusikkdommen11 and the Swedish Morningtondommen,12 published in NIR-1980 page 258. With reference to Rt-1995-35, the Smartkortdommen13 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. (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 10 11 12 In this context the court remarks that a “hub” [or node] is not a machine but software that as a starting point can be installed on any PC with sufficient capacity. Use of the Internet for file sharing of music has been dealt with before in Norwegian case law. In “Napster.no” the intermediate court4 described the use of the Internet as follows: “[A]’s business was based on sending other peoples’ information to napster.no about addresses to illegal music-files in the net. With use of a script at Napster.no and the information, links were made to the specific music-files. The essential fact in the case is that the cybernauts that used A’s website, the users, got direct access to these music-files by clicking A’s links. Downloading from the place where the musicfiles were placed to the user’s own PC was initiated automatically, and the user could choose between playing the music, downloading the music or canceling the downloading.” The present case is different from “Napster”. Thus, it is not possible to draw parallels between the decision5 of Høyesteret,6 published7 as Rt-2005-41,8 and the problem raised in this case. To fully understand the legal background of the case the court quotes from the Supreme Court decision in the Napster-case:9 (41) Pursuant to §2, first para., copyright gives – under the limits of the Act - sole and exclusive right to control the intellectual property 4 Translator: of March 2004 from “Eidsivating lagmannsretts” - unofficial English translation at . 5 Translator: of January 21, 2005, docket HR-200500133-A. 6 Translator: Norwegian Supreme Court. 7 Translator: in case reporter. 8 Translator: and at (last visited February 2005). 9 Translator: See Rt-2005-41, Lov&Data [Law & Data Magazine] 81/2005:3-7. Translator: White Paper Translator: Business-music-case. Translator: Morning-tone-case. 13 Translator: Smart-card-case. Direct connect-oslo_ENG – page 7 Unofficial Translation of the “Direct connect-Oslo” case 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 Ecommerce Directive, see Ot.prp. no. 4 (20032004) 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 domstolen14 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 clearly pulls in another direction. The case was presented to the15 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:16 “He does not himself make the protected work accessible for downloading by the public Translator: The Swedish Supreme Court. Translator: Norwegian. Translator: HERE re-translated into English from the Norwegian decision, not the original German decision. 15 16 14 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 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 Direct connect-oslo_ENG – page 8 Unofficial Translation of the “Direct connect-Oslo” case 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 til17 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 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 TONO18 and NCB.19 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 Translator: Homage Volume to Translator: The Norwegian organization for collecting copyright fees for music and distributing it to the respective copyright owners. 19 Translator: Norwegian Copyright Bureau. 18 17 provisions that protects copyright”,20 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 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 strafferett21 (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 periferi22 (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 20 “å overtre bestemmelser gitt til vern for opphavsretten”. 21 Translator: General Criminal Law, a treatise by a famous Norwegian Law Professor. 22 Translator: The Periphery of the Liability to Punishment. Direct connect-oslo_ENG – page 9 Unofficial Translation of the “Direct connect-Oslo” case was exactly to give others access to the music. The 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 recordproducers. §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’ production 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 Direct connect-oslo_ENG – page 10 Unofficial Translation of the “Direct connect-Oslo” case 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. In the present case one of the acts for which [A] is charged is that he ran three hubs on which the file sharing was done. What happens is that a request to search the file-list goes through the hub, while the other contacts between the users are done directly between the users, not through the hub. When this happens there is nothing in the hub that shows what is happening between the users. Defendant has explained that during a period of his life he used the Internet as a refuge from the daily life. It was here that he meet those whom he refers to as “his friends on the Net”. He regards many of those he meet there as his friends, even though for most he has never met them other than on the net. Amongst others, he met his fiancée on the net. Defendant belongs to a group on the Internet Relay Chat (IRC) that discusses Jazz, among other topics. However, defendant found the IRC-service had too many conflicts and looked for other services that were more protected against attacks. During this process he considered starting up an FTP-server to exchange files, but he ended up using the software “Direct Connect” (hereinafter “DC”). The reason he choose the latter was that both file sharing and chatservice were integrated in the same service. He tried to get his friends to follow and join him in using this service and established for this purpose a hub, “Jazz-house”. Defendant described it as a “test hub” with approximately 50 registered users, of which 30-35 were active. It was a closed hub, that is, one had to be registered as a member with a username and password before using the network. Jazz-house was working from July through December 2003. The hub was placed on a server at Netcom that was owned by an employee there. Later [A] had a server built, which was placed at a dataroom at Netcom. The choice of place was made with the purpose, amongst others of using Netcom’s high-speed connections for testing software defendant has designed himself. Thereafter, [A] got a request from his fiancée [B] and from a friend [C] to place a hub on his server at Netcom since they themselves had difficulties with their machines. Defendant has explained that he regarded these persons as his friends and that he wished to do them a friendly turn. He received the hubs in the form of a file in socalled zip-format which contains an archive of files in compressed form. The zip-file was placed on the machine at Netcom, un-zipped and the hub was activated. The files were received in full working order, wherefore defendant did not have to do anything more that just start the hubs, which immediately began working. Furthermore, the defendant has testified that he was only a guard with the task to see to it that the hubs were working. He received from other people a large amount of technical questions that he tried to solve. During the trial, the court was presented with “config”-logs and some logs from conversations defendant had through the Internet. The latter consists of only a part of approximately 25,000 A4-pages that had been printed. The court has taken notice of the defendant attorney’s objection, but finds that the documentation to a large degree is representative of the full content of the logs.… The court finds by the given evidence that in general, the material placed on defendant’s computer is material which is protected by the Copyright Act. In general, the material is newer than the 50 year duration in the Act and is covered by the §58 of the Copyright Act or the foreign country rule, as the Supreme Court outlined it in the “napster.no”,23 see above. On the basis of this evidence the court holds that there no consent was given by the copyright owners to the use of vast majority of the files. Claim I a: During the trial defendant explained that he initially operated a socalled “0-slotpolicy”, that is, he did not 23 Translator: case. Direct connect-oslo_ENG – page 11 Unofficial Translation of the “Direct connect-Oslo” case allow persons to download from his own computer. Along the way, this was moderated in such a way that defendant admits he, expressly to whom he regarded as his “friends”, allowed downloading. Here, pursuant to case law, see the “napster.no-case, copying and publishing have been done. What differentiates that case and the present is that in the first case links were placed on the website, whereas in the present case links were placed on the defendant’s computer. The court finds that the evidence shows that defendant gave persons access to files on his computer. The court does not find it significant whether one makes links or gives persons access to music files on his own computer. Legally, both acts must be regarded as “making available”, as long as persons other than the defendant in fact are given access to the music files. The court finds that the evidence shows that defendant has given access to a large amount of music files from his computer, music he had not been allowed to publish by the property owners. Thus, he has objectively violated the rules in the Copyright Act. The court has to determine whether such conditions are present that require a sentence to be imposed on the defendant. The court first deals with the question of excusable mistake of law. The court finds that there must be found specific circumstances before the court can acquit defendant. The commentary to the Penal Code gives as examples of conditions that can imply acquittal, that a law-paragraph is new and makes changes to the previous law, that the text of the law is ambiguous or uncertain, that one has relied on statements from the authorities etc. The court finds that defendant was not mistaken regarding the law concerning the issue of sharing music files and movie files. Indeed, although defendant has at certain times declared in the conversation-logs that “file sharing is legal in Norway”, certain other aspects show that defendant was aware of the law. The court finds that the so-called “DVD-case”24 had 24 Translator: the criminal DVD-Jon cases in Norway, translations of decisions at and been in the courts shortly before defendant began his hubs and that in connection with that case there were newspaper articles on copyright, intellectual property etc. More than anything, the court points out that defendant clearly was afraid of American record producers who searched for illegal file sharing, and that his DNS-address and IP-address were changed several times when he thought the authorities had infiltrated them. Furthermore, there are examples of statements like “nobody cares about a small jazzhub”, something that indicated that those involved were clearly aware of the illegality of the acts. On basis of the above, the court holds that not only did the defendant know that file sharing of the material was illegal, but that he deliberately shared music which he had saved on his computer with others. The next question is whether defendant, because of the exceptions in §12 of the Copyright Act, has acted legally. It is legal to copy files for “private use”, including family, friends etc. There exists a fair amount of case law and discussions as to what is embraced by the definition of “private use” and what is not. In the present case – on which subject the court will deal further with later on - defendant is charged with running three different hubs with different user terms. Defendant was a user of these hubs and used them in a smaller or larger extent to communicate with others. As for Jazzhouse, this was a small closed hub with circa 30-35 active users. Jazzgroove was open with several hundred users, whereas Lushlife was closed, but with a significant number of users which defendant had actively recruited. A subject the court has to determine is how legally to deal with the persons one meets in Cyberspace, but who one only after or long period – or never – meets face to face. It is possible that the way to meet people has changed after the invention of the , see also the civil case DVD Copy Control Association v. Andrew Brunner, Jon Lech Johansen, Masters of Reversed Engineering (MoRE), et. al., 10 Cal.Rptr.3d 185, 116 Cal.App.4th 241 (Cal.Ct.App.6.Dist., February 27, 2004). Direct connect-oslo_ENG – page 12 Unofficial Translation of the “Direct connect-Oslo” case computer and the Internet. The question the court has to ask is whether the fact that one has not met another person face to face gives reason to state that a friendship does not exist. The court finds it hard to accept such an argument. The court has to follow the development of the society and to recognize the fact that new ways of getting together have arisen. The court finds that it is possible to describe a person as a friend even though one has only communicated with that person via the Internet, just as well as a person one had only talked with on the phone. This does not mean that the issue of frequency between the contacts are irrelevant, but only that contacts through the Internet do not exclude the possibility of establishing a friendship. Defendant has mostly characterized the people he had contact with on the hubs as his friends and family. This is especially the case for Jazzhouse, which had a limited number of persons. However, the court finds it unnecessary to discuss how large the group can be as the court finds it proven that – with few exceptions - there do not exist the kind of personal ties which are required for concluding that immunity applies. There exist printouts of communication logs which show that defendant has allowed file sharing with persons he clearly never previously had had communication with. The court finds this weakens defendant’s own evidentiary statements on this issue. Thus, the court holds it is proven that defendant has shared his music files with others, files he knew he did not have property rights to, and with persons that cannot be regarded as embraced by §12 of the Copyright Act. He shall be convicted for Claim # Ia. Claim # II a, III a, IV and V: During the trial there was proposed a thesis pursuant to which downloading becomes illegal if one after having downloaded protected files for private use thereafter places these files on the Net. For its consideration, the court must bear in mind that downloading for private use is legal and that there until now has been no requirement of a legal “foundation for copying”. This implies that until now one could without punishment download files which illegally were made available on the Net. The question is, whether defendant by his acts has produced his own copies “in violation of the rules” and thereafter made them available for the public. The court finds that the defendant’s acts cannot be evaluated in a vacuum, an issue the court will discuss in connection with the question of contribution or aiding. The fact that defendant has a large amount of music files on his computer does not in itself prove that he was planning to making the files available on the Net. However the court holds, in light of defendant’s testimony regarding his desire to maintain an environment for people interested in jazz, his activities, the large amount of files that was available, and the file sharing the court has found already proven, see above under # Ia, that it has been proven, as to the large amount of the files this case is about, that defendant both had the intent of using the files for private use and the intent of sharing them with others. The later is illegal and thus, the copies were produced in violation of the Copyright Act. The court finds that the evidence shows that defendant has acted as described in the claim. By his acts he has infringed the protected rights to the work that the producer and the performing artist have as to both copying and publishing. He has acted with knowledge of his lack of authority and with knowledge of the illegality. He shall be convicted for this. There is an occurrence of different aspects of the same violation which are covered by several statutes. Thus, “idealconcurrence” and the criminal statues can be used together. Claim # I b, c, d, II b, c, d, III b, c, d: The next question the court will deal with is the issue of defendant’s contribution to or aiding of illegal file sharing. The question is partly dealt with by the Supreme Court in “napster.no”, #77, but as the facts are different in the present case, it is necessary to examine the issue more closely. Initially, the court points out the difference, namely Direct connect-oslo_ENG – page 13 Unofficial Translation of the “Direct connect-Oslo” case that in the present case the hub had only a “contact-creating” function. The exchange of file-lists and the transmission of the files themselves took place directly between the users, not via the hub. The court must look at the general requirements for contribution or aiding, and next look at the special requirements for contributory or aiding in this case. It is without doubt that the case at hand is in the gray border-zone of whether contribution or aiding is present or not. It is necessary to look at branches of jurisprudence other than that at issue in this case, amongst others, since there is no case law similar to this case. In this case there is no issue of physical, but rather psychical contribution or aiding. On this subject it is stated in Andenæs: Alminnelig strafferett (5 ed.) page 327: A psychical contribution or aiding can consist of “tilskyldelse” [“incitement”] or good advice. Evidence on whether the principal criminal would not have done the act without aiding is not required, it is sufficient that the intent is fortified or that the good advice has influenced the planning or the execution. rejected a ticket-fine and the first voting judge observed: From a pure linguistic understanding of §3 it can be said that the defendants, by letting themselves and their tour-equipment be transported in this way, made a “use” of the snow scooters. They had benefit of the snow scooters as means of transportation. However, I have come to the conclusion that this cannot be the basis. A fortuitous, tollfree, and passive and accidental conveyance without any connection to the driving itself – as is the case here – is not a criminal act. From this decision it follows that random incidents are excluded from the branch of jurisprudence on contribution or aiding. If one wishes to look for incidents where aiding has been condemned, the court points to Rt-1995-1228 (the Andrawes case): The majority of the intermediate court has determined that A “had not influenced the further sequence of events until C shot the air pilot”. The prosecution argues that aiding in §233 of the Penal Code does not require any causality between the act of the accessory and the main criminal. There has been made reference to Johs Andenæs: Alminnelig strafferett, 3rd edition page 290 that states that “criminal aiding does not require that the contribution has been necessary to reach the result”. We refer further to the decisions that are quoted, especially Rt-1948-13 and Rt-1948-175 which had similar facts to the present case. Even though A stated that she did not want the air pilot killed, she continued contributing in the capture. Andenæs says at page 290: “Anybody, who contributed to such a joint action, shares the responsibility for the results as far as these are coved by the intent.” The majority of the intermediate court has also discussed whether A had a duty to intervene against the principal criminal. There is made reference to Andenæs page 291 which states that even if a person has a special duty to prevent the crime, passivity in general cannot be punished. Pursuant to the description of the majority of the intermediate court, the prosecutor argues that A’s behaviour cannot be characterized as pure passivity. The majority holds that she “resumed her role as capturer” – armed with hand-grenade she continued to hold the passengers and cabin crew in check. Thus, her role was in no way passive. Therefore, the prosecution claims that the description of the intermediate court is to be considered objectively as criminal aiding. Thus, the criminal court has misintrepretated §233 of the Penal Code on this issue. There is made reference to25 Rt-1926581, where a man in the trial court was convicted for aiding sales of liquor. He had seen his wife selling liquor from their apartment without his having intervened. His conviction was revoked by the Supreme Court because an passive act not could be regarded as criminal aiding even though one thereby could consent to the act. There is made further reference to Rt2003-902 where the Supreme Court held that a man, which had rented a part of his office for the storage of furniture and movables, could not be convicted for aiding illicit distilling even though he did not prevent future production. The court refers to Rt-2000-1455 which dealt with illegal motor-traffic in wilderness areas. The defendants were offered a free ride in the wilderness without it being planned. They rode into a national park and were spotted by the authorities. The court 25 Translator: case reporter at. Direct connect-oslo_ENG – page 14 Unofficial Translation of the “Direct connect-Oslo” case Furthermore the majority holds that even if A had argued against the killing of the pilot, she still was aware of the possibility that he might be killed, and she continued nevertheless aiding the action. The prosecution finds that this is sufficient to establish intent, since this description is embraced by the so-called positive consent of the intent-concept. Reference is made to Andenæs page 277 and Rt-1980-979. Pursuant to the description of the majority, this in the opinion of the prosecutor fulfills both the objective and the subjective requirements for criminal liability under §233 of the Penal Code. Since the intermediate court nonetheless finds that she cannot be held liable for this, the court must have misintrepretated §233 on both the objective and the subjective aspect. As mentioned, the majority took as its basis that A’s act “did not influence the further sequence of events until C shot the pilot.” It should be remarked that the majority did not consider further whether there was “good reason” to suspect the opposite. Because the majority found this to be the determinative issue, they ought to have discussed this essential point thoroughly. Thus, alternatively it is claimed that the courts reasoning is inadequate on this issue. The prosecution has asked the court to decide that: “The decision of the intermediate court is rescinded”. A has in its brief on appeal especially pointed out: Even if causality is not a requirement for aiding, at least there is required what Andenæs describes as a “contributory causal relation”. It seems to be this requirement that the intermediate court cannot find. There is also made reference to Henry J Mæland’s commentary to the Penal Code that states the “aiding must have had some function to the crime.” Further there is made reference to Erling Johannes Husabø: Rett til sjølvvalt livsavslutning26 (1993) where the aiding-concept in §233 is thoroughly discussed. As for the reference to Andenæs’s statement on “joint actions” it should be noted that the “joint action” in the present case not was the killing of the pilot but the capture of the airplane. The majority made it clear that the killing was an “independent act, distinct from the capture of the plane.” It is asserted that the majority’s reasons are not imperfect since it was determined that A did not influence the sequence of events. There does not seem to be any reason to suspect this finding as there has to be found an overwhelming likelihood that the suspicion is justified. 26 Translator: The right to self-elected end of one’s life. The majority of the intermediate court has found that A did not strengthen the intent of the principal or in any other way contributed. The prosecution’s attack on this issue must refer to the assessment of the evidence rather than to the interpretation of the law. Also as for the question of whether A had a duty to prevent the principal from the killing, is it claimed that the prosecution is attacking the intermediate court’s assessment of the evidence. It is an assessment of the evidence of the actual facts in the cabin of the airplane that the majority used for determining that A did not have a special duty to do more than she did toward the principal. The grounds relied on by the majority of the intermediate court seem sufficient. In the reply it is more closely explained why it seemed impossible for A to intervene against the principal. As for the question of guilt pursuant to §233 of the Penal Code, the majority of the intermediate court held that A had not shown an intent to kill, and there is no reason to presume the court has misunderstood the concept of intent in the code. A asserts that: “the appeal should be dismissed.” The Supreme Court points out: As remarked above, this is the third time the Court has dealt with this case, and the second time the Court considers it in connection to the question of whether A with good reason can come under suspicion of aiding the killing of the air pilot B. During the consideration the Court, as previously, is bound by the restriction of competence provided by §388 of the Criminal Procedure Code. An essential issue in the case is whether the killing can be regarded as connected to the capture of the airplane. In this respect, the Court makes reference to the German arrest-decision of August 18 1994 where it is pointed out the killing “was done to frighten the passengers and the crew and to emphasize the demands of the captors.” Reference should also be made to other grounds made in the arrest-decision on the background for the hijacking and on the several incidents of threats to kill all the passengers and crew members if the demands of the hijackers were not honored. These demands included the release of nine German terrorists and payment of 15 million dollars in ransom. To force the airplane to start again after a long stay in Bahrain before it flew to Aden, where the killing took place, there had been made a specific threat of killing the pilot and some of the passengers. In light of this background it is surprising that the majority of the intermediate court states: Direct connect-oslo_ENG – page 15 Unofficial Translation of the “Direct connect-Oslo” case “Even though the killing happened while the plane was captured, the majority regards the killing as an independent act, distinct from the capture. The act of the killing appears neither to be necessary or rational to preserve the capture or to achieve the capturers’ goal. C was alone in both deciding the killing of the pilot and the homicide.” The statement has both legal and evidentiary implications. As for the aiding-responsibility in §233 of the Penal Code, it is the opinion of the Court that those who participate in a hijacking – or at least such a capture as the present – have an aiding responsibility for the killings that occur during the capture unless special circumstances show otherwise. The Court makes reference to the decisions cited by Andenæs: Alminnelig strafferett page 290 at the bottom about the criminal responsibility for aiding illegal executions and other actions with the result of homicide during the Second World War. The single participant cannot escape from his responsibility by subordinating himself to a leader, who has the absolute command authority. installed a burglar alarm, they discussed whether to cut the electricity. B explained where the fuse box was place in the residence. C drew a plan of the residence, including the location of the bedrooms of the parents and of the sister and the sisters’ husband. On the plan was also marked the fuse box. During the discussion of how to do the killings, it was remarked that they had to kill the most agile persons first and that one could use a disposable dress and disposable socks to prevent making trails. A pointed out that one could not kill people because of a fight over a farm. B replied that she understood the seriousness of the situation, while C stated it was a question of life or death.” First, I look at whether the grounds for the decision of the intermediate court on the issue of the fixing of the sentence for A gives any basis to assume the intermediate court used the law incorrectly. The intermediate court notes: “A clearly had a more limited role than the married couple. She traveled to Molde with money that she knew B had provided so D could buy weapons on the illegal market. After having bought two pistols, she went to farm X determined to hand over the pistols to B and C. To some extent it is uncertain whether A had any intent to kill before she arrived at farm X on the night before Christmas Eve. But she knew that the married couple looked to buy illegal weapons, and that they had asked her whether she could get hold of a “torpedo”. The intermediate court holds she at least from this moment regarded it as possible that the pistols might be used to kill somebody. Despite this she brought the weapons, which she hid in the barn, and brought them into the living room after the other guests had left the Christmas party. Because of this involvement she had a clear duty to prevent the pistols from being used for the killings. After she had brought the pistols into the living room, she witnessed a planning in details of the killing of B’s parents and sister and the sister’s husband. The intermediate court holds she from then on regarded there was every probability that the planning was seriously meant and that they would carry through with use of the pistols she had handed over. Since she with this kind of knowledge, and after deliberation, did not make any efforts to remove the pistols or in any other way prevent their being used, she has by her omission become guilty of aiding an intentional homicide.” While the opinion of the prosecution was that A already from a earlier time had been active If one uses this decision as basis, the defendant can be convicted for aiding since he has been a part of a joint action with the purpose of sharing files with others without paying the property owners. The court also refers to Rt-2002-1717 (the Orderud case) that notes: As for the further discussion I remark that the intermediate court on the issue of the fixing of the punishment (amongst others) explains the following about the planning of a killing on farm X the night before Christmas Eve 1988: “B initiated the killings. In Fall 1998 he asked A and D whether they could provide weapons. He also gave 20,000 crowns to D so he could purchase the weapons on the illegal market. This money, or a part of it, D gave to A, who then bought two pistols in Molde. After the party on the night before Christmas Eve the weapons were brought into the living room on farm X. D showed how to load the weapons, and explained how they should be used. B, C and D were wearing disposable gloves during the demonstration of the weapons. During this they began to discuss how to kill B’s parents and sister and the sister’s husband. It was suggested that a burglary should be simulated by using a glass-hammer when entering the door to the porch so the least damage was done. Because B and C were doubtful of whether B’s parents had Direct connect-oslo_ENG – page 16 Unofficial Translation of the “Direct connect-Oslo” case in the planning of the killings, the intermediate court does not consider this; but holds that it is somewhat uncertain whether intent existed at a time before she arrived at farm X the night before Christmas Eve 1998. Firstly, I find without doubt that if the intent existed at the time she handed over the pistols then the crime is compassed by §233 of the Penal Code. In that case to be exempt from punishment she would have to prevent the corollary, see §50 of the Penal Code. However, the basis of the fixing of the sentence of the intermediate court is based on the assumption that even if the intent was not present at the mentioned time, A nonetheless had a duty to act when she shortly thereafter – having heard of the planning of the killing – had to know that there was every probability that the planning was seriously meant. When she after consideration did not fulfill this duty, she must be regarded as guilty of aiding a willful murder. This implies that the failure to recapture the pistols, or in any other way to see to it the planned killings would not take place, has to be regarded as punishable under §233 of the Penal Code. The provision in §233 first and second parts on deliberate and willful murder does not mention omission as a violation. However, even though omission is not a starting point, and it is not covered by the provision, it is not doubted that in special circumstances there can exist a duty to act and one can be punished pursuant to §233 if one neglects such a duty. In legal theory culpability has been stressed as a criterion for punishing omissions, see amongst others Andenæs: Straffbar unnlatelse27 (1942) page 282. I also refer to page 288-289 where Andenæs says: “One who has planned a crime often uses help from naïve people that provide him information and tools,… Naturally, the helper is accountable if he continues his aid after he realizes the real truth of the matter. However it is doubtful whether a special duty to intervene can be imposed on the aiding person. Still, one can have participated in such a substantial way during the preparations and been involved in such a way that it is natural to regard his passivity as aiding.” Husabø in Straffeansvarets periferi emphasizes in an example at page 186 the affiliation requirement – the requirement of a special connection between the person that leaves an act undone and the interest the crimeprovisions pursue. No matter which of these approaches one chooses, I agree with the opinion or use of the law by the intermediate court – on the basis of the facts the court used while fixing the sentence, A had a duty to act. She had bought the pistols illegally, was asked whether she could provide a 27 torpedo, and when she handed over the pistols, she calculated that murder was at least a realistic possibility. Furthermore, the space of time was very short until she realized there was every probability that the killings would be carried out. Nevertheless she did nothing to prevent the danger that her participation had created. A plain and obvious possibility was pure and simple to recapture the pistols, but other acts could had been done to prevent the murders, for example she could had notified the police or the person to be killed. Thus, I see no error in the opinion or in the use of the law as stated in the decision of the court. Thus, the essential question is whether the instruction to the jury of the intermediate court implies that the court in its decision used the law wrongfully. As I have mentioned, the instruction to the jury was not entered into the record of the court, but was tape-recorded, and a transcript hereof was presented to the Supreme Court. From the instruction to the jury the defense attorney has pointed at: “Similarly for A. If she overheard the planning of the murders on the night before Christmas Eve, and she can be blamed for not realizing the seriousness [of the plan] and that it was real as the pistols were placed on the table at farm X, she had to take them home with her She like F had at that time a duty to prevent her contribution – the risk of harm caused by her involvement.” It is especially the wording “can be blamed for not realizing the seriousness [of the plan] and that it was real” that the defense attorney attacks and holds wrongfully implies a guilt requirement – namely that A’s negligence would be sufficient to answer yes on the primary questions which dealt with aiding to willful murder. I agree the word “reproach” naturally has been thought to apply not only to intentional but also to negligent acts. Detached these sentences in the instruction to the jury can give the impression that too small a requirement has been called for of the jury by the intermediate court. However, the picture becomes different when one puts the statements into their full perspective. I call to mind that is was a big and complicated task to give instructions to the jury in this case. There were four persons indicted, between these were different kinds of aiding acts to be considered, and there were big differences between the prosecutors and the defendants’ attorneys’ opinions of the law and the sequence of the events. The instruction to the jury was very thoroughly and detailed – the transcript is over 22 pages. The outline is very logical and stringent, with distinct explanation of amongst others the definitions and requirements of intent, willful and aiding. The presiding judge of the intermediate Translator: Punishable Omission Direct connect-oslo_ENG – page 17 Unofficial Translation of the “Direct connect-Oslo” case court made clear that the principal question for the court is willful murder, he explained exhaustively and correctly what intent means and embraces, what the requirements are, and at what time intent must exist. I point out especially that the presiding judge made clear that negligence is not sufficient, and stated in part: “Thus, the principal question in the present case is one of willful murder. … At a lower degree of likelihood than that there is every probability that (something will happen) the situation is regarded as a negligent killing28 - §239 of the Penal Code. Negligence is not sufficient to answer yes to the principal question in the present case. Intent is required. In the questions put forward to you29 there is no question on negligent killing. As attorney Kjensli discussed in his pleading (final statements) D was in the trial court convicted for negligent killing. Here in the intermediate court that problem or issue only has to be dealt with if the principal question on intentional murder is answered no. In that case you30 will be issued a new instruction on negligent killing.” The formulations that the defense attorney attacks occurred in the presiding judge’s instruction about the guilt requirement, but a section further in the instructions, he deals with the requirements for withdrawal from completed attempt – first as for B, then C and last as for A. As I have pointed out, it was the opinion of the prosecution that A from a very early time was active in the planning of the killings, and the instruction to the jury had to take into consideration that the bench members of the intermediate court agreed to this. The basis of the presiding judge’s instruction on withdrawal from attempt had to be that A had sufficient intent at a previous time. It can fairly be stated that it is hard to discover what the presiding judge meant with the wording “and she can be blamed for not realizing the seriousness [of the plan].” Nevertheless I do not find this can have confused or mislead the intermediate court as for the required degree of guilt before the principal question on willful murder could be answered yes. I remark that A’s defender at the end of the instructions to the jury – that is just before the jury went into deliberation – asked for a clarification of exactly these formulations. This only caused the presiding judge to repeat what he has stated earlier, and what happened has no influence on my conclusion. At the citation from Andenæs: Staffbar unnlatelse in the Orderud-case, the book does have an example of responsibility that can arise by passivity: “A truck driver Olsen was hired by two well-known acquaintances to drive from a place near Moss and pick up some goods the two persons had left at that place. The car was parked in the woods and all three stepped out of the car and continued by foot circa 100 meters past a building where the two had planned a burglary. They stood some time at a barn, then went back to the building, and while the driver watched, one began to remove the kit of a window frame so he could break in. No word was exchanged. During the work for removing the window they were discovered by some of the owners’ employees. The driver was convicted for aiding an attempt of burglary. The court held it had been proven that he had had a strong suspicion that something was wrong when they parked the car in the wood, and that he was fully aware of the issue when they stood at the barn at the other side of the building. Had he backed out by refusing to allow his car to be used to transport stolen goods, there would have been no burglary. On the contrary, he without objection followed the two others and stayed there as an onlooker. That he had neither actively participated in the burglary itself or positively encouraged it, could under the specific circumstances not exempt him from being an accessory. On the question of intent, the court will refer to Andenæs, Alminnelig strafferett (5th ed.) page 233: Intent is present also in case of an unwanted result if the offender has calculated it as certain or there is every probability of it. One who sets his house on fire to get the insurance is an intentional killer if he presumed it as certain or there was every probability that the tenant would be burnt to death. That he regrets people could be involved does not exempt him from full responsibility when he nevertheless acted while aware this might be a possible result. In a similar way there exists intent as to the consequences of an act that the offender calculated as certain or that there was every probability of.[...] It is of course not the objective degree of likelihood that has to provide the basis, but the likelihood that the offender calculates. These sentences have been confirmed by case law. What is doubtful is how high a degree of likelihood is required.[…] Probably the best way to express the present state of the law is that likelihood-intent exists when the offender has 28 29 30 Translator: (manslaughter). Translator: (the jury). Translator: (the jury). Direct connect-oslo_ENG – page 18 Unofficial Translation of the “Direct connect-Oslo” case regarded it as more probablee that the criminal result would occur than the opposite. of the result of harm seems. It is also recognized that it can be difficult to find a single formula that can embrace the different instances that can occur in practice. It is especially difficult to make a sufficient demarcation to the degree of guilt that does not reach intent, but must be regarded as deliberate negligence or carelessness. It is precisely here that the element of the burden of proof is present. From the instruction of the intermediate court are recorded two sections. The first is: “Each of the accused to be convicted must have realized that he shot and that he did so even though he realized it as an possibility that the … affronted could be hit and killed. If the accuseds shot to kill, that is had intent to cause the affronted’s death, it is clear the subjective requirements to convict them for assault with intent to kill is present. However, to convict it is not required that the accused acted with murderous intent. It is sufficient that they have taken into consideration the possibility that the shoots would kill, and that they “took this possibility as a part of the bargain”. The underlinings occur in the original records of the court. As for intent, the court especially refers to two decisions: The first is published in Rt-1990-600 and points out: Intent exists in different forms, see amongst others the explanation given in Rt-1980-979 on when a punishable consequence can be regarded as willfully done. The most obvious instances are where there exists an intention, or where the offender has regarded the criminal result as certain or there is every probability of it. Intent is also found in circumstances where the offender has regarded such a result as a possibility, the socalled dolus eventualis. The above-mentioned decision Rt-1980-979 was based on the presumption that intent exists when the offender has decided to act even though the result will be fulfillment of the consequences described in the criminal provision. This is the essence of the socalled positive consent-theory. What applies for intent as for consequences, also applies for other elements of a criminal provision. When the positive consent-theory is used in practice, questions of proof will often occur. What thoughts the offender had and what decisions has he made cannot be directly observed, thus, often the decision must be made from conclusions based on the circumstances of the act. Thus, the offender through his behavior can have shown that he had decided to commit the crime even though intent is an element of the crime. Such a determination can be regarded as having been made, even though the determination has not been fully clear in the mind of the offender. If the court finds that the accused has made such a decision, the court has to find that intent exists. As the quotation shows, this statement is referring to both defendants. The statement is presumably based on what is called the positive consent-theory. This theory expresses that for conviction it is at least required that the accused shot despite having considered the possibility of a hit and a death, and had accepted this possibility. The other section that is recorded is this: “You (the jury) has to find it proven that A was aware when he fired that the shot would hit one of the many persons that was around him in the fist fight and that a hit with every probability would mean death. You have to examine the evidence and measure the accused’s situation on the basis of his knowledge at that time.” The choice of wording shows that the statement was especially pointed at defendant A. I point out that he acted under different circumstances than the other persons accused, and this fact invariably must influence the valuation of the evidence. I regard the statement partly as a tightening up of the requirement of the positive consent-theory, and partly a request to the jury to be very careful when evaluating the evidence. Those sections, which are quoted, brought along a request for clarification from attorney Feydt as defender of A, of attorney Sellinger as In Rt-1980-979 is stated: Intent in relation to the result of the harm exists in different forms. The result of harm can have been intended as the object. The offender can have been regarded it as certain or that there was every probability of it. And the offender can have regarded it as more or less possible. In the latter position a demarcation is necessary. Amongst those formula developed by theory, exists dolus eventualis pursuant to the so-called positive consent-theory. In brevity the idea behind this latter formula is that intent exists when the offender has decided to act even if the result might happen. However, it is only on the theoretical plane that such a formula exists as pure jurisprudence. In practice it will be mixed with the element of the burden of proof and the requirement of degree of convincing-strength depending on how near or remote the possibility Direct connect-oslo_ENG – page 19 Unofficial Translation of the “Direct connect-Oslo” case defender of B, and of the District Attorney. This resulted in the following recording: “On the request for clarification from attorney Freydts the presiding judge remarked that at the time of firing it was not required there was every probability that the shot would be deadly. On the request for clarification from attorney Selinger the presiding judge remarked that it is sufficient there is a real possibility that the shot could hit and in that case kill. But the accused had to be aware of the possibility and taken the consequence as part of the bargain. On the request from the District Attorney the presiding judge added as a further clarification that the offender to be convicted for knowingly attempting to murder he must have taken the possible death-result as part of the bargain.” For me it is obvious that especially the last clarification puts everything in order. I will not comment on the two other clarifications. To me they give elements for the total evaluation the jury had to make, and that in any case they cannot be to the disadvantage of the two accused. From the defense side it is noted that the presiding judge has used the expression of taking the result of the harm “as part of the bargain” without making it clear what that meant. The response is to say firstly, pursuant to the record before the intermediate court, that the defending attorneys did not especially request a clarification of this expression. This must mean that they – evaluated on the basis of the production of evidence – did not find a need for it. Neither can I see that the expression as used and with the given clarifications could lead to misunderstandings. The court now deals with the questions related to the present case. The accused has claimed that Jazzhouse was established with the aim to keep an environment from IRC. He has admitted he owned this hub. Lushlife and Jazzgrove were operated by the accused as a friendly turn on a server that he had access to. He has himself described that he himself was only a “guard” and that his task was only to provide that the servers was functioning. He used the hub as a chatchannel to B, his fiancé. In addition, it has been emphasized that one operating the hub does not have any possibility to see which files are shared between the logged-on users. Thus, he had no possibility to control which files were shared. The defense attorney has emphasized the latter and refers to American caselaw, especially the Grokster case, which now is on appeal before the US Supreme Court. Grokster was acquitted by the Federal District Court and the Court of Appeals. The courts especially pointed out that the software was not illegal, that use of file sharing-applications is not illegal and that one cannot control what is happening. It is important to remember that file sharing-applications are not in themselves illegal, nor is file sharing as long as it happens with material that is not protected, or consent is given by the property owner, or pursuant to the exceptions in §12. What the American courts have considered is whether the producers of the software, and the service-supplier [ISP] are responsible for the use of the software. This question so far has been answered “no”. What we derive from the decisions is that if the companies had knowledge of illegal acts then they had a duty to intervene and stop the illegal acts. The court holds as previously mentioned that one cannot treat the decisions referred to and the accused’s acts in a vacuum. His acts have to been regarded in relation to his knowledge of the environment, his own use of file sharing and his consent to this and the fact that he actively recruited new users to the hubs. As for the accused, the court points out that there exist facts other than those in the decisions which are referred to above. There is the fact that the criminal act took place when the accused was aware of it. Further, the facts are different than for others who offer access to the Internet, for example research environments, broadband providers etc. In those situations the intention of the file sharing is to share material that one has the rights or consent to share. This was not the case in the present case where the overall purpose of the hubs was to share copyrightprotected material without the consent of the property owner. The defendant has to have been aware that file sharing in all likelihood would be the result when he started up the hubs. The accused’s admitted fear of intrusion from American record producers, his statements that “file sharing is legal in Direct connect-oslo_ENG – page 20 Unofficial Translation of the “Direct connect-Oslo” case Norway” and “nobody cares about a small jazz hub” leave no room for doubt that he knew that the hubs would be used for illegal file sharing, that he had considered it and that he accepted it. Thus, he fits nicely into what case law and theory regards as intent. The defendant himself has explained that he belonged to an environment where the interest in jazz was the center. However, when one looks at the kind of music defendant had on his computer, the conditions required of the users (at least x GB for sharing), the conversations defendant has had with others, defendant’s actions in recruiting new users, his “helpdesk”-service and so on, the accused’s explanations lose their trustworthiness. It is obvious that defendant has operated more than just as a “guard”. The court holds that it has been proven beyond any doubt that the accused had a very active part in the operation of the actual hubs. It is the opinion of the court that his high level of activity cannot alone be attributed to his wish of having correspondence with his fiancé and other friends, but also has been based on a desire to preserve the operation and achieve new users. In the eyes of the court, the case at hand fits what Andenæs describes: “It can happen that his role has been such an important part of the preparation and has been entangled in the act to such a degree that it is sensible to regard his passivity as aiding.” The court finds it fully proven that the accused was fully aware of what he was doing and that he knew the file sharing software was misused for sharing files that were protected material. He wished the result even though he knew it was illegal. This has to be regarded as aiding pursuant to the law. Thus, defendant objectively and subjectively can be convicted. The next question, however, is whether there exists any other provisions that make defendant’s acts exempt from punishment. The first question is whether Norwegian penalty law can be used for the claims in the present case. As previously mentioned, the file sharing takes place between the users, not via the hubs. This can indicate that a user in the U.S. downloads files from a user in Italy. The provision in §12 of the penal code must be compared with the provisions in Chapter 8 of the Copyright Act and the foreign country rule. In this connection is it §12 first para. subsection c which has to be used. Breach of copyright etc. is punishable in most of nations in the world. The act, aiding to breach the Copyright Act, has been done in Norway and the act is therefore punishable. The next question is whether the “ehandelsloven”31 §16 and the E.U. ECommerce Directive 2000/31/EF of 8 June 2000 has to be used. The provisions are as follows: §16. Exemption from punishment for certain transmission and access services. An information society service that transmits information in a communications network on behalf of a recipient of the service is not criminally liable or liable for damages for the content of the information transmitted, if a) the service does not initiate the transmission, b) the service does not select the recipient of the transmission, and c) the service does not select or modify the information contained in the transmission. Transmission pursuant to first part includes the automatic, intermediate and transient storage of the information transmitted, if a) the storage serves the sole purpose of carrying out the transmission and b) the storage is not stored for longer than is necessary for the transmission. The provisions in first and second parts cover similar services if the service consists of access to a communications network. The Department commented on the provision in Ot.prp.32 no. 4 (2003-2004): As for §16. Exemption from punishment for certain transmission and access services This provision is new and carries into effect Article 12 of the E-commerce Directive. This provision regulates such services that are called pure transfer-communications (mere conduits), see Chapter 3.2. Pursuant to the first paragraph, a service that transmits information for a recipient of the service is exempt from criminal and civil liability for the content of the transmission if it fulfills the requirements of letter a to c. 31 32 Translator: the E-commerce Act. Translator: White Paper. Direct connect-oslo_ENG – page 21 Unofficial Translation of the “Direct connect-Oslo” case The Norwegian translation of Article 12 no. 1 of the Directive implemented in §16 first para. of the bill is somewhat misleading. The Norwegian translation states that “a service that offers an information-public-service which only consists of transmitting information given by a service-receiver in a communication network or of giving access to the communication network…”, while the Danish translation states that “by delivery of an information-service (-) which is offered by a service-receiver, or offering access to a communications network…” The Norwegian translation has inserted an “only” which does not occur in either the Danish or the English version. This “only” can be misunderstood, and does not achieve the limitation of the exemption-provision wished for. The Department has on this background not included the exception in §16 first para. According to letter a the transmission of information may not begin with the service provider. If the service provider is the initiator of the transmission of the information there exists no exemption from punishment. The difference between this requirement and the requirement in first para. letter c, is that here is it the service provider itself that sends the information, which is not the case pursuant to letter c. According to letter b the service provider may not select the receiver of the transmission. It is in Chapter 7.3 more narrowly discussed whether a service provider is still covered by the exemption from punishment if it offers a selection of receivers on the basis of, for example, demographical data. Letter c lays down the requirement that the service provider itself must not select or modify the information being transmitted. A service provider that makes only necessary changes because of the format of the original in order to transmit the information is not regarded as having changed the information being transferred. Such an adjustment does not change the content being transmitted, only how it is presented. Whether the conversion is intended by the receiver, who otherwise could not get access to the information, or by the conversion the transmission becomes more secure or efficient, does not influence this consideration. A service provider who adds his own content during the conversion to another format, deletes part of the content, or edits the content of the text, may not be embraced by the provision, see Chapter 7.3. Pursuant to second paragraph a service provider as mentioned in para. one is also exempted from criminal and civil liability even if the transmission includes the automatic, intermediate and transient storage of the information transmitted, if the requirements in letters a and b are fulfilled. The requirement of intermediate storage must be regarded as drawing the line at instances where the information is stored on a more permanent basis. Intermediate storage will typically be covered by the provision if it is done while waiting for available transmission capacity. The requirement of transient storage distinguishes services regulated by §17. Pursuant to letter a the storage must exclusively serve the purpose of transmitting of information. If the storage has other purposes is it possible that the storage is embraced by §§17 and 18 of the bill. An example is that access to the information may be given during the storage so that permanent copies can be made. The storage shall not continue beyond what is necessary for the actual transfer, see letter b. It is not possible to give a closer indication of time as for what is “necessary” storage. This requirement must be related to the requirements in the second paragraph under which the storage shall be intermediate and transient. Subsumption in case of doubt must be made pursuant to a total consideration, where the purpose and other solid considerations are part. […] Pursuant to the third paragraph the provisions in the first and second paragraphs apply similarly to service providers if the service consists of offering access to a communications network. This covers service providers that offer access to the Net, and the servers, routers, etc. on which the information is transmitted. In the present case it is certain that defendant did not initiate the transfer, he did not himself select the recipient of the transmission and he did not select or modify the information being transmitted. This must objectively be interpreted to mean that a person that re-communicates information on the Internet, whether paid or not, is exempt from punishment. The issue at hand is a question of liability for aiding and thus there is a requirement of intent, see decision from Borgating Intermediate Court in RG-20031268, which states: There is not disagreement that at least a part of those pictures and video-films that in 1998– 1999 were offered to Tele2’s “news”-subscribers, and which are mentioned in indictment, are of pornographic character. §211 of the Penal Code punishes the negligent dissemination of such material. The essential question is whether by the E.U. Directive on E-Commerce Norway is obligated to refrain from punishing one who negligently communicates such illegal material. The E.U. Directive 2000/31/EF of 8 June 2000 (Directive on Electronic Commerce) should pursuant to article 22 be carried into effect in each member state before 17 January 2002. Norway has not complied with the deadline, but Direct connect-oslo_ENG – page 22 Unofficial Translation of the “Direct connect-Oslo” case it is bound by public international law to implement the directive into Norwegian law. The lack of implementation, however, does not seem to have significance for the present case on the issue of use of law. Pursuant to §1 second part of the Penal Code, the criminal law in Norway applies with “the limits that follow from agreements with foreign states or of public international law.” Thus the question is what limits exists on allowing punishment of electronic dissemination of pornographic material pursuant to the directive on electronic commerce, especially Article 14 and Article 15. The prosecutor in the present case has documented a extensive consulting-statement of 18 February 2003 form the Justice Department, where the Justice Department articulates on “The Provision on Exemption from Liability for Networks in the new law on E-commerce” and where the issue of the requirement of guilt in connection with an eventual liability to punishment is given considerable attention. It is further explained that in a proposal to amend the E-commerce Act there is made a requirement of intent to punish a service provider that illegally store information. This is the reason the actor in the present case has asserted a claim of acquittal. The intermediate court reluctantly comes to the conclusion that the E.U. Directive, together with §1 second para. of the Penal Code, implies that in the present case only purely intentional acts can be punished. However, as the prosecutor in the present case and under these special circumstances has claimed acquittal, the court leaves unresolved a discussion of this question. The court accepts the claim of an acquittal. The decision is unanimous. den verksamhet som består i enbart vidarebefordran eller cachning och får därför inte utnyttja de undantag från ansvar som har fastställts för denna verksamhet. (44) A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of « mere conduit » or « caching » and as a result cannot benefit from the liability exemptions established for these activities. (44) En tjenesteyder, der bevidst samarbejder med en tjenestemodtager om at begå ulovlige handlinger, overskrider grænserne for ren videreformidling eller caching, og den pågældende kan som følge heraf ikke omfattes af de ansvarsfritagelser, der er fastsat for denne form for aktiviteter. The provisions must be interpreted in connection with article 12 of the E.U. Directive that grants exemption from liability. However, this must be interpreted in light of the preamble which gives the background for the provisions. In the present case is it especially number 44 that is important. The Norwegian translation states: [A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of « mere conduit » or « caching » and as a result cannot benefit from the liability exemptions established for these activities.] The Swedish, Danish and English versions state: (44) En tjänsteleverantör som avsiktligt samarbetar med någon av mottagarna av hans tjänst för att begå olagliga handlingar går utöver As shown, there is a limitation of the exemption from liability if there is a collaboration between one that operates an information-society service and one (or more) user(s). The court has to consider the question of what is covered by “collaborate”. It follows as a premise for the Directive that the intention was not to hold liable service providers that only carry or store material. But it is a clear premise that those who intentionally offer net-capacity or storage-capacity to be used for illegal use of the Internet shall be prevented. As previously mentioned, the concept of intent in Norwegian law embraces only one who agrees with the offender that a criminal act shall be committed. In addition, one who without the knowledge of the criminal keeps guard outside the house where the housebreaking takes place is regarded as collaborating with the criminal and having intent and being liable for aiding in the crime. Defendant in the present case has explained that he operated as a “helpdesk” and helped users with technical problems. Thus, in a legal sense he must be regarded as collaborating with the users. Based on the above the court finds that defendant has acted with the required intent. He was fully aware of what happened, he desired the result and he thus cannot be embraced by the rules on exemption from liability in the E-commerce Act. Thus, he Comment [t1]: Henrik: This paragraph should be left in the original Norwegian (indented and small type), as the court then quotes three different translations (including the official English translation) in the next three paragraphs. Direct connect-oslo_ENG – page 23 Unofficial Translation of the “Direct connect-Oslo” case can be convicted for the remaining claims of the charge. The Fixing of the Sentence: There exists no case law regarding punishment for breaking the Copyright Act via the Internet. The prosecutor has presented a claim of a combination of unconditional imprisonment and an order for community service. The court emphasizes that there are an extensive number of files that have been shared and that it has happened on a very professional scale. In the direction of mitigation there is the fact that the accused has not previously been punished or violated the law. Furthermore, he has not had any economic gain from the criminal acts except that he has not paid for the music that he himself has downloaded. The court finds that even though illegal file sharing is in the process of becoming a social problem, there has been done only economic harm to record and movie producers etc. Nobody else’s interests have been hurt and no persons have been put in danger. In the eyes of the court it will in the present case be too harsh to sentence the defendant to unconditional imprisonment. The court has determined the sentence to be 120 days of community service over 150 days. If the community service is not fulfilled, the alternative penalty will be 120 days of imprisonment. This shall be reduced by the 3 days the accused was in custody. The convicted defendant has agreed to community service. Confiscation: There has been presented a claim of confiscation pursuant to §35 second para. of the Penal Code, compare §37 first para. The court finds the condition for confiscation is present because the machines have been used as tools to commit the crime. There will be passed judgment as claimed. §12 first and second para. of the Penal Code, compare §1, §62 first para., §57-§59 of the Copyright Act and Chapter 6 of Regulations to the Copyright Act of 21 December 2001 nr. 1563 have been used. Judgment will be pronounced when the time-limit in §42 of the Criminal Procedure Code has passed. Immediately after the court adjourned the court held the first conference on fixing the sentence. However it was necessary to have several conferences because of the extent and complexity of the case. The judgment is unanimous. Direct connect-oslo_ENG – page 24