p2pnet news view Freedom | P2P:- The Pirate Bay is five years old and by way of a birthday present, a Danish court has confirmed a November 26 judgment by the Danish appeal court upholding an earlier decision calling for TPB to be blocked in Denmark.

“The court ruling found that mass scale infringement is taking place on the Pirate Bay site and stated that Danish ISP Sonofon should block the service,” says Billboard, quoting John Kennedy, a spokesman for the IFPI, owned by Vivendi Universal, EMI, Warner Music and Sony BMG, who’ve been ripping off people all over the world, and whose motivations are very clearly nothing to do with music but a great deal to do with making money, as saying:

“For everyone trying to make a living out of music, this is hopefully the start of the endgame for a business which is ripping off creators all over the world, and whose motivation is very clearly nothing to do with music but a great deal to do with making money.”

The decision also confirms Danish ISP Sonofon, part of Tele2, has now been successfully enlisted as a Big 4 corporate copyright cop.

‘More radical than many have thought’

A little more than two years ago,  “I thought you might be interested in this,” Sebastian Gjerding from Denmark’s Piracy Group told p2pnet, “referring to a new translation of the four-page verdict in IFPI vs Tele 2, with relevance to the ongoing attacks on AllofMP3.com.”

The idea was to spread the word about the case, “which can have an big impact on the way internet is regulated in Europe in the future (as IFPI claims that it will be followed by the other EU-countries if the higher court upholds the decision of the City Court),” said Gjerding.

And the  ruling was, “a lot more radical than many have thought,” he stated.

For example, “Under section 2(2) of the Danish Copyright Act, reproduction is regarded as any direct or indirect, temporary or permanent, and complete or partial reproduction in any form or manner whatsoever. Thus, any form of copying falls within the scope of section 2. Based on this, the Court finds that the fleeting and random fixation of the work of music in the form of electronic signals conducted in the various routers during the transmission of data packages via the Internet also falls within the scope of section 2 of the Danish Copyright Act. Furthermore, Tele2 cannot invoke the right of temporary reproduction under section 11a of the Danish Copyright Act, since this provision presupposes that the reproduction is based on a legal copy.”

It’s a dramatic new way of relating copyright to data traffic and in principle, “opens up for a long list of sites being blocked from citizens’ access,” Gjerding stated.

Our post continued with a complete translation from Marie Elisabeth Pade Anderse, to wit »»»

Based on the evidence the Court finds it has been rendered probable that the Russian company Media Services, which provides the website allofmp3.com, does not have the necessary permission from the applicant, which administers copyrights for phonograms in Denmark, to make protected works available to the public via the Internet. Hence, the Court has placed particularly strong emphasis on the fact that the works are offered for very low price on the website as well as on the information from the Russian branch of IFPI, according to which the Russian branch of ROMS does not have the permission of IFPI’s members to license allofmp3 or any other similar website to use the recordings, which they own or to which they have the exclusive license right.

It remains uncertain to what extent the Russian website has Danish users, who download protected works of music. The questionnaire survey, which has been prepared by the advertising agency Just/Kidde A/S and presented to the Court by the applicant, shows a market penetration of minimum 2.10%. Even though the survey should be subject to reservations, among other things due to the fact that it is not based on a representative segment of the population but only on respondents who have purchased music from allofmp3.com within the last year and also due to the fact that the number of respondents is very limited, however, it seems to render probable that the website is used to some extent in Denmark. This is also indicated by the fact that the website was included in Tænk’s April 2006 market survey on music downloads. The final and most deciding factor in this regard is that allofmp3 offers recording by Danish artists, which shows that the website is also aimed at the Danish market. Due to the market share held by Tele2 as a network operator, it must be assumed that a proportional share of Tele2’s customers downloads music files from the website in question. In such cases, the transmission of music files is facilitated by Tele2’s network.

Tele2 has stated that the temporary storing, which takes place in the router when the music files are sent via the Internet and which is completed in less than a millisecond, is so fleeting that it does not constitute a reproduction in the sense as is mentioned in section 2 of the Danish Copyright Act. Hence, Tele2 has stressed that TDC has, at least on previous occasions, used proxy servers to a wide extent and that the order in U2006.1474H must be evaluated on that basis, since it is indisputable that reproduction occurs in proxy servers. Tele2, however, does not use proxy servers.

Under section 2(2) of the Danish Copyright Act, reproduction is regarded as any direct or indirect, temporary or permanent, and complete or partial reproduction in any form or manner whatsoever. Thus, any form of copying falls within the scope of section 2. Based on this, the Court finds that the fleeting and random fixation of the work of music in the form of electronic signals conducted in the various routers during the transmission of data packages via the Internet also falls within the scope of section 2 of the Danish Copyright Act. Furthermore, Tele2 cannot invoke the right of temporary reproduction under section 11a of the Danish Copyright Act, since this provision presupposes that the reproduction is based on a legal copy.

In compliance with the decision in U2006.1474H Tele2’s transmission of the works entails that Tele2 is objectively infringing upon the copyrights administered by the applicant; cf. section 2(2), cf. (1) of the Danish Copyright Act.

It is not rendered probable that allofmp3.com is also used for legal purposes, regardless of whether it is formally possible for the users to familiarize themselves with the various hit lists without downloading music. The structure of the hit lists offering direct links to the music files in question, which can then be downloaded, must, however, be seen as an integrated part of the applied concept.

In addition, it must be taken into account that the illegal activity will continue unless injunction is issued. Thus, the conditions for the issue of injunctions in section 642 of the Danish Administration of Justice Act must be regarded as having been met.

The applicant has presented information on various ways in which a possible injunction could be complied with and has left it to Tele2 to decide on which of the described procedures is to be carried out in order to comply with the injunction if need be. The method relating to blocking at DNS level is largely equivalent to the method used by most service providers in order to block child pornography. Thus, it is not established that the implementation of a possible injunction is technically impossible. Furthermore, blocking at DNS level must be presumed as being capable of implementation with no noticeable costs or administrative trouble. The fact that more experienced IT-users might be able to avoid the blocking, as is also the case with the current blocking for child pornography, is not found to be a hindrance to the implementation of the injunction.

It cannot be denied that action may be taken against the website in question, potentially via legal proceedings or other forms of legal action directly against Media Services or the service provider in Russia. However, in the proportionality weighing the Court finds that it must emphasize that a demand for all remedies to be tried in Russia first would entail that the illegal activity could continue for some time resulting in loss on the applicant’s part. Furthermore, this would conflict with the obligations of Denmark under article 8 of the InfoSoc Directive, which was implemented in Danish law by Act no. 1051 of 17 December 2002, whereupon rightholders may apply for an injunction against intermediaries whose services are used by a third party to infringe copyrights or related rights. The reasoning behind these rules is, among other things, that in many cases such intermediaries are best placed to stop the infringements.

Moreover, it appears from the information in the present case that at the end of 2005, the applicant started to preserve evidence for the purpose of possibly filing a motion for injunction. It is also stated that the applicant then decided to await the decision in U2006.1474H and that the applicant preserved additional evidence in the spring of 2006 up until early May 2006, at which point the applicant contacted Tele2 requesting that the judgment debtor avoid participating in making recordings from the website in question available and making reproductions of said recordings, which Tele2 refused on May 26, 2006 whereupon the motion for injunction was filed on June 11, 2006. Furthermore, it should be noted that based on the evidence it must be taken into account that the number of Danish works of music offered for sale via allofmp3.com has increased in the period from end 2005 to the spring of 2006. Under these circumstances the Court does not find that the applicant has shown inaction with regard to requesting an injunction against allofmp3.com.

There is no basis for assuming that the judgment debtor will incur liability, neither against its subscribers nor against third parties, by complying with the injunction. Therefore, there is no cause for demanding provision of security.

The Sheriff’s Court hereby allows the applicant’s claim as ordered below.

IT IS ORDERED THAT

The judgment debtor, Tele2 A/S, shall be prohibited from participating in making recordings available via the website www.allofmp3.com and making reproductions of said recordings to which members of the applicant have the exclusive copyrights.

Furthermore, the judgment debtor shall take the necessary measures to prevent the access of the judgment debtor’s customers to the Internet website allofmp3 with associated subsites and subdomains.

[translator’s note] Russian Multimedia and Internet Services, also referred to as The Russian Organization for Multimedia and digital Systems

[translator’s note] a Danish consumer magazine

[translator’s note] a Danish network operator

TRANSLATION – excerpt from Order by the City Court of Copenhagen in Case no. F1-15124/2006.

Stay tuned.

Did you enjoy this story, or find it interesting/useful? Help keep the posts coming by donating. No amount is too small. Cheers! And thanks.

Billboard - Pirate Bay Block Ordered In Denmark, November 27, 2008
p2pnet - IFPI vs Tele 2 — in English, November 5, 2006

---

Use free p2pnet newsfeeds for your site. It’s really easy!
Subscribe to p2pnet.net | | rss feed: http://p2pnet.net/p2p.rss | | Mobile - http://p2pnet.net/index-wml.php

---

Net access blocked by government restrictions? Use Psiphon from the Citizen Lab at the University of Toronto. Go here for details.

This entry was posted on Monday, December 1st, 2008 at 1:05 pm and is filed under Freedom, P2P. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

HOME

Viewed 2930 times