Unofficial Translation of the “Norwegian Napster” case

Translation by Senior Researcher Henrik Spang-Hanssen

Decision of 27 Janyary 2005

from
Supreme Court of Norway
Citation: HR-2005-00133-A or Rt-2005-41

Docket No. 2004/822

On the Bench: Gussgard, Oftedal Broch, Mitsem, Bruzelius, Aasland..

TONO, NCB Nordisk Copyright Bureau, EMI Norsk AS, BMG Norway AS, Sony
Music Entertainment Norway AS, Universal Music AS

Help-intervener:1 IFPI Norge

vs.

Frank Allan Bruvik d/b/a Napster.no

Copyright law: Claim for damages pursuant to §552 of the Copyright Act for making links on the
Internet to copyrighted music files in mp3-format. The right-owners sued for 500,000 NKR3 in damages.
The Supreme Court did not decide whether the making of links to music files should be regarded as
published, see §2 of the Copyright Act. However, the linking was regarded as contribution in respect of
damages for the uploaders illegal publishing of the music, see §55 of the Copyright Act, see also §54
subsection a and d, see §45. Damages was rewarded for the loss of the record-producers and the artists
that are embraced by §58 of the Copyright Act and directions §6-1 to the Copyright Act. The Supreme
Court affirmed the first instance’s decision of awarding 100,000 NKR in damages, but not there was no
order as to costs.4

History: 22nd January 2003 Sør-Gudbrandsdal tingrett5 (Citation: TSGUD-2002-203) – 3rd March 2004
Eidsivating lagmannsrett6 (Citation: LE-2003-482).

1
Translator: Similar to Amica Curie in US.
2
Unofficial translator of §55 (1998): Damages can be claimed for injury or loss done in violation of §54 or §49 first
part pursuant to the ordinary rules on damages. If the violation of the right of the right-owner or performer or the
model is intentional or gross negligent, then the court furthermore can award a sum of money to compensate non-
economic loss. Even if the offender has acted in good faith, can the offended claim the net-profit of the illegal act,
no matter the size of the damage.
3
≈ $ 76,920.
4
Thus, each party had to bear his own costs.
5
Local first instance court.
6
Intermediate court. Unofficial English translation at <www.linksandlaw.com/decisions-135-napster-norway.htm>.

Norwegian Supreme Court - Napster_EN – page 1

 Unofficial Translation of the “Norwegian Napster” case
(1) Judge Gussgard: The case deals
with a claim of damages pursuant to §55
of the Copyright Act caused by making
links on the Internet to copyrighted
works – music files in mp3 format.
(2) On October 4 2000, the domain
name napster.no was registered. The
owner was Frank Allan Bruvik d/b/a
Napster.no. The basis of the website was
that the users informed of web-addresses
to music files, which addresses was
placed on napster.no. On the homepage
was a link named “Add an mp3” where
a user could type amongst others artist,
title and the web-address to the actual
music file. By help of a software
application – a “script” – would
automatically be generated a new site
under napster.no with a link to the music
file. From time to time the script did not
work, and links would then be made
manually. The case covers the period
August through November 2001 during
which the website contained in average
links to 170 music files. All music files
was stored on foreign servers.
(3) After the links was made, the
website could be used to downloading
of music in mp3 format from the
Internet. Mp3 is a designation of a
compression-technique that makes it
quicker to download a file than in the
original format. When a user clicked on
one of the links, he was offered the
choice of either play the music
immediately or store it on his own
computer for later use, or cancel the
process.
(4) Also, Napster.no had a search-
function that allowed the users to
inquire whether it was possible through
the website to achieve the music that
was wanted. The use of the website was
free. It contained some advertising. If a
user clicked on one of these, defendant
would gain 1 NKR7 per click. All
7 8
≈ 0.15 cents.
Norwegian Supreme Court - Napster_EN – page 2
together, defendant has earned 500
NKR.
(5) It is not disputed that the music
Napster.no gave access to was illegal
uploaded on the Internet. The owners of
the rights had not given their consent,
and the material is covered by the
Copyright Act.
(6) In Fall 2001, the Norwegian
branch of record companies association
– IFPI Norge – reacted against
defendant’s business on the Net.
Defendant was advised that the business
was illegal and punishable. Defendant
did not agree. However, after consulting
with several lawyers, he deleted the
music files in November 2001.
(7) TONO, NCB Nordisk Copyright
Bureau, EMI Norsk AS, BMG Norway
AS, Sony Music Entertainment Norway
AS and Universal Music AS filed a
lawsuit against defendant at the court of
Sør-Guldbransdal. IFPI Norge and
Antipiratgruppen i Norge participated as
help-interveners.8 Plaintiffs claimed
500,000 NKR in damages for the illegal
linking to the music. The court of first
instance decided the case on January 22
2003 (TSGUD-2002-203) with the
following judgment:
“1. Frank Allan Bruvik d/b/a
Napster.no shall in damages pay the
plaintiffs 100,000 NKR + interest,
for the present 12 percent, from
respite for payment until payment is
done, see §3 first para of the Act on
Delay-Interest.
2. No costs is awarded.”
(8) The court of first instance held
links such as those used by Napster.no –
often called direct links or deep-links –
imply public presentation in the sense of
the Copyright Act, and that the linking
of he music files was a violation of the
Translator: Similar to Amica Curie in US.
 Unofficial Translation of the “Norwegian Napster” case
Copyright Act. Defendant had in the
eyes of the court “at least” acted
negligent, and was liable to pay
damages pursuant to §55 of the
Copyright Act.
(9) Defendant made a request for
being allowed to appeal directly to the
Supreme Court, which request was not
granted. The appeal then went to
Eidsivating lagmannsrett. IFPI Norge
participated as help-intervener. During
the preparation of the trial, the appellees
further claimed that appellant had acted
inconsistent with the general competing-
provision in §1 first para of the
Marketing Act – which claim had not
been made before the court of first
instance. The Court of Appeal granted
permission to forward the new claim,
which decision was reversed by the
Supreme Court pursuant to §366 of the
Civil Procure Code, see §367 and §375,
see also Rt9-2004-60, as it regarded it as
a new claim.
(10) Decision was handed out on
March 3 2004 (LE-2003-482)10 with the
following judgment:
“1. Appellant is acquitted.
2. Second part of the decision of
the court of first instance is
affirmed.
3. Each party to bear his own
costs before the appeal court.”
(11) The Court of Appeal held the
links only made a reference to places
where the music already was made
accessible for the public. The website
could be compared with a “bulletin
board that contained the direct addresses
to the uploaded works”. The linking was
not a publication in the sense of the
Copyright Act. Neither could the
conduct be contribution of others
9 foreign right-owners through mutual
Translator: Norwegian Case Reporter
10
Unofficial English translation at
<www.linksandlaw.com/decisions-135-napster-
11
norway.htm>.
Norwegian Supreme Court - Napster_EN – page 3
publication. The illegal act that the
uploaders did by putting the music on
the Internet, was in the eyes of the
appeal court finished and fulfilled, since
it was uploaded. As the provision in §54
of the Act was formulated, the existed
no contributory liability; the provision
was not worded as a “condition-
delinquency”11. The requirement of
causality was not fulfilled, and appellant
had to be acquitted.
(12) All plaintiffs have appealed the
decision of the Appeal Court to the
Supreme Court, with IFPI Norge
participated as help-intervener. The
appeal relates to the evaluation of the
evidence and the use of the law.
(13) There has been presented court-
testimony of defendant and of Cato
Bjørn Strøm on behalf of TONO. There
has been held court hearing where
expert Håkon Styri and Øivind Svendby
from IFPI has given evidence. Both has
also made written depositions. Further
has been submit evidence from the
expert in the appeal court, Erling
Maartmann-Moe. The case presented for
the Supreme Court is in reality the same
as it has been before the previous courts.
Defendant has withdraw some few
arguments that has no influence on the
main questions of the case.
(14) TNO, NCB Nordisk Copyright
Bureau, EMI Norsk AS, MBG Norway
AS, Sony Music Entertainment Norway
AS and Universal Music AS has, with
support from the help-intervener,
summarized argued:
(15) TONO administer music works
for Norwegian right-owners pursuant to
the Copyright Act. The right-owners
assign their copyrights to TONO.
TONO also handles performing rights of
agreements with similar organizations in
“tilstandsdelikt”.
 Unofficial Translation of the “Norwegian Napster” case
foreign countries. Performing of the
protected works to the public require
consent from TONO. TONIO has
handed over the right to produce and sell
the music works to NCB. NCB
functions like a shared central for rights
of the Nordic countries and give consent
to reproduction of music-works with
accompanying text on records, tapes,
etc. These two organizations claim
damages pursuant to §55 first para of the
Copyright Act, see §54 first para
subsection a.
(16) The other appealing parties are
Norwegian record-producers that
represent all rights to their own
productions and production of their
foreign parent companies or
subsidiaries. Normally, the artists has
transferred their rights to the producers.
The parties agree taht the record
producers had the rights to 75 percent of
the uploaded music works.
(17) The rights of the performing
artists and the record producers is
regulated in §42 respectively §45 of the
Copyright Act. The provisions does not
give sole and exclusive right to make
something available to the public, but
the protection is expanded by the
penalty provision in §54 first para
subsection d of the Act, which protect
all making available to the public when
the copies are produces in violation of
§42 and §45. Liability for damages is
given in §55, and arguments put forward
are identical for the appealing parties. It
is probable correct that only the artists
from the EØS-area are protected, but
there is no geographic limitation on the
protection the producers have, see §58
second para, third full stop.
(18) The primarily main argument is
that the links at Napster.no to the music
files imply a making available to the
public pursuant to §2 and §54 first para
subsection d. Publishing must be
interpretated as a term on itself. Third
Norwegian Supreme Court - Napster_EN – page 4
part of §2 is only a example of what the
term embrace. The linking is illegal
because there is no consent from the
right-owners.
(19) The Supreme Court can use the
same facts as the appeal court.
Defendant organized the homepage and
saw to it that the net-addresses
suggested by the users, was made
directly accessible by the links.
(20) The Appeal Court rightfully
described how the links functioned. The
court held that they only could be
regarded as reference to other websites
and compared them as addresses. Others
have compared such links as footnotes
in books and articles. However, the links
are more than that. They gave directly
access to the music files to be played
and/or stored. A simple information of a
web-address does not give such a direct
access. Neither does footnotes give the
reader access to the work mentioned in
the reference. Defendant’s business can
better be compared with offering a
jukeboks. The later has been regarded as
publishing music to the public, see Rt-
1964-782.12
The sole and exclusive right to
publish a work is not a onetime right. It
also apply to a re-communication of a
previous publication of the work. It is
has no consequence whether the users
have been able to get access to the
music at another web-address.
Reference can be made to the
Bedriftsmusikkdommen,13 Rt-1953-633,
and the Swedish Morningtondommen,14
published in NIR-1980 page 258.
(22) Without the links the users
would normally not be able to find a
music file which was uploaded on a
computer connected to the Internet. The
12
Translator:
13
Translator: Business-music-case.
14
Translator: Morning-tone-case.
 Unofficial Translation of the “Norwegian Napster” case
appeal court has not paid regard to the
fact that it is first when a link is made to
a file, that the users normally can get
access to the file. Links is of vital
importance for the use of the Internet.
(23) That the links gave direct
access to the music files – the possibility
for immediate experience of the music –
is the appealing parties main point.
(24) The decision of the Appeal
Court is inconsistent with the decision
of June 17 2000 from Högsta
domstolen15 in Sweden in the so-called
Tommy Olsson-case, and with a Danish
decision of April 20 2001 from Vestre
Landsret.16 Both courts held that links
giving similar access to works as in our
case, implied making available to the
public. The German Paperboy-case of
July 17 2003 from the
Bundesgerichtshof dealt with search
engine and legal uploaded works. This
case has no importance for our case.
(25) That the linking is regarded as
publishing, will have no significant
negative effect for the information- and
communication-business on the Internet.
When a rights-owner uploads something
on the Net, or gives consent to such, it
must be interpretated as that owner has
eo ipso given consent to linking to the
uploaded material. Neither is there any
problems in relation to the freedom of
speech.
(26) Secondarily is alleged, that
defendant is liable for damages as he has
intentionally contributed to the illegal
conduct that the uploaders did by
putting the music on the Internet.
(27) There is laid down the
following claim:
15
Translator: The Supreme Court of Sweden.
16
Translator: The Court of Appeals of Denmark,
Western District.
Norwegian Supreme Court - Napster_EN – page 5
“1. Defendant shall pay TONO,
NCB Nordisk Copyright Bureau,
EMI Norsk AS, BMG Norway AS,
Sony Music Entertainment AS and
Universal Music AS jointly
damages determined discretionary
by the court, but not lower than
100,000 NKR, and before two
weeks from the decision has been
served, plus interest pursuant to §3
first para, first full stop of the Act
on Delay-Interest, for the present
8.75 percent, from the time for
rightful payment until payment is
done.
2. Defendant shall pay TONO,
NCB Nordisk Copyright Bureau,
EMI Norsk AS, BMG Norway AS,
Sony Music Entertainment AS and
Universal Music AS their costs for
the court of first instance, the appeal
court and the Supreme Court, before
two weeks after the decision has
been served, plus interest pursuant
to §3 first para, first full stop of the
Act on Delay-Interest, for the
present 8.75 percent, from the time
for rightful payment until payment
is done.”
(28) Defendant has summarized
claimed:
(29) The decisions of the appeal
court is correct.
(30) The author has sole and
exclusive right to make the work public,
however, the right only protects the
concrete form of the work. Information
in or about the work lays “in the free”.
The public can freely mention, make
comments from and make reference to
the work. This is not in the sense of
copyright changed because the work is
made public in a illegal way. A lot of
material on the Internet is protected by
copyright, and if links is regarded as
publication, will an important part of the
linking – also to legal material – as a
 Unofficial Translation of the “Norwegian Napster” case
starting point be forbidden. It will be
problematically if interpretation require
consent to linking when the work has
been legally uploaded.
(31) Such links as dealt with in this
case, does not make use of anything but
copyrighted work lays “in the free”. It is
not the link that makes the work
accessible, but easier accessible. The
link is coded in such a way that the users
browser can load the music file on the
users own computer, provided that the
browser understand the language the
music file is uploaded by. The links in
our case was coded in the simplest way
and contained only address information.
It was for the users to decide whether
they would activate/use the links. There
is not real difference between making
such a link and inform of a web-address.
As for the later, the user can put it into
the address field, either by typing it or
copy-paste it. The appealing parties has
acknowledged that if so, then their does
not exist publication/accessibility. There
exists no criterion in copyright
distinction between an address which is
coded – and thus computer readable -
and one which is not.
(32) Also, there exists a technology
by which the browser recognizes a web
address, even if it is not coded as a link.
If linking is regarded as publication,
then it created huge problems for this
new technology. Some types of links,
“coded links” and “get-links” [hente-
link], may possible have a copyright
aspect, but there is not reason to go into
this.
(33) The Department for Culture
and Church has circulated for comments
a report with suggestions to amendments
of the Copyright Act. It involves
amongst others implementing of the
Copyright Directive – “
Infosocdirektivet” – Directive from the
European Parliament and the Council
2001/29/EU of 22. May 2001. In the
Norwegian Supreme Court - Napster_EN – page 6
draft it is stated that offering a computer
with Internet connection to the public at
a public place, cannot be regarded as
public performance, as opposite the
situation for radio and TV sets. The
Department finds it decisive that it to a
larger degree is the user that decides
what the computer-device shall be used
for. A inference from the bigger to the
less imply, that neither can the pekerne
at napster.no be regarded as making
something available to the public. Also
here, it is the users that decides.
(34) The Paperboy-case dealt with a
advanced search engine and is a
important and central decision for our
case.
(35) There exists other ways to
protect right-owners. One possibility is
given in §1 first para of the Marketing
Act. The Copyright Directive increase
the protection, and we must expect the
directive will be implemented soon.
(36) Provided that the links cannot
be regarded as making something
available to the public, the question
arises whether defendant has contributed
to the acts of the up loaders and
therefore is be liable for damages. This
defendant contests. There is no causality
between the linking and the uploading
of the music. Even if, the determine
must be that when the links does not
imply making something available to the
public pursuant to the Copyright Act,
can they neither in the next turn be
regarded as illegal and provide liability
for damages, because they increase the
availability. It would be a circular
argumentation. Defendant has not acted
intentionally. Liability for negligence
can be a violation of freedom of
expression, compare Kyrre Eggen,
Norges internasjonal forpligtelser på
 Unofficial Translation of the “Norwegian Napster” case
ytringsfrihetens område,17 Special
supplement no. 1 to NOU18 1999:27
(Ytringsfrihetskommisjonens
innstilling), page 282 etc.19
(37) In any case, defendant must be
acquitted in relation to NCB, which only
has had the right to copy transferred to
it.
(38) Pursuant to §58 second para,
third full stop, is production of copies of
sound protected also where it has been
made outside Norway, but foreign artists
are not similar protected. These are only
protected to the degree of the foreign
country rule, laid down in prescript by
the Department of Culture and Church
December 21 2001 pursuant to §59.
Much support that also the producers
can cite the foreign country rule to get
protection.
(39) The following claim has been
made:
“1. Defendant is acquitted.
2. Defendant and the public is
awarded the costs for the court of
first instance, for the appeal court
and the Supreme Court, plus
interests pursuant to the law from 14
days after the respective court
decisions was served and until
payment is done.”
17
Translator: Doctor thesis by Kyrre Eggen:
Norway’s international obligations in the area of
free expression and speech.
18
Translator: Norges Offentlige Utredninger.
19
Translator: White Paper 27 of 1999 on
proposed amendments to Article 100 on freedom
of expression of the Norwegian Constitution] can
be found at
<http://odin.dep.no/jd/norsk/publ/utredninger/N
OU/012005-020029/index-dok000-b-n-a.html>.
Chapter 12 is a Summary in English and can be
found at
<http://odin.dep.no/jd/norsk/dok/andre_dok/nou/
012005-020029/hov012-bn.html> (visited
January 2005).
Norwegian Supreme Court - Napster_EN – page 7
(40) I find the appeal has to be
decided on basis of the second ground,
liability for contribution, and that the
appeal “fører frem”. Since the oral
proceedings in overall has dealt with
whether the links must be regarded as
availability pursuant to the Copyright
Act, will I discuss this, and especially in
relation to §2. The analysis will also
illuminate the reason for my choice of
basis for my decision.
(41) Pursuant to §2, first para.,
copyright gives – under the limits of the
Act - sole and exclusive right to control
the intellectual property
(42) The preparatory report,
Ot.prp.20 no. 26 (1959-60), suggests that
the sole and exclusive right to publish
includes any possible way of making the
work known to the public. The third
para. is thus not meant as a legal
definition of “making available to the
public”. The term is technology neutral.
I agree with this interpretation of the law
and remark that in the statement to
amendments to the Copyright Act the
term is referred to as a superior term.
(43) The sole and exclusive right to
publish is not lost when the work is
published for the first time. An example
of making the work available to the
public is turning on music from the
radio in a shop or a workplace. I refer to
Rt-1953-633, the
Bedriftsmusikkdommen21 and the
Swedish Morningtondommen,22
published in NIR-1980 page 258. With
reference to Rt-1995-35, the
Smartkortdommen23 there has in legal
theory been made the requirement that
the method that is used must give the
public a fairly direct access to the work
before one can speak of accessibility.
20
Translator: White Paper
21
Translator: Business-music-case.
22
Translator: Morning-tone-case.
23
Translator: Smart-card-case.
 Unofficial Translation of the “Norwegian Napster” case
(44) It is not disputed that the
uploaders made illegal copying and
illegal access available to the public.
However, I stress that if the linking is
regarded as access then it will embrace
both legal and illegal material that has
been laid out. The understanding of
what is accessibility must be the same in
both incidences.
(45) To illuminate the question
whether the linking in napster.no was
accessibility to the musical work, the
parties have thoroughly dealt with the
technology behind the users’
possibilities of hearing music from
links.
(46) It is stated by the appealing
parties that the linking gives
independent and direct access to the
music. A on his side has claimed that the
links only contained an address to a
website, and by clicking the link the
music was stored temporarily on the
user’s own computer. Only at this time
could the user play, or alternatively store
the music file for later use. A part of the
theory the parties have made reference
to points out that is can be of importance
whether the user by clicking a link
continued “being on” napster.no, or
whether he has “moved” to the website
that the links points at. In addition, there
has been an issue of distinguishing
between direct links/deep-linking on one
hand and on the other site surface-links
– links to the website’s homepage.
(47) For me it is not decisive
whether it is one or the other type of
link, nor if the user in a technical sense
“is found to be” on his own computer,
on napster.no, or whether he has
“moved” to the website that is linked to.
It is difficult to see why this should be
decisive for regarding the work being
accessible to the public in sense of the
Copyright Act. The decisive factor must
be how the technique works – if and
Norwegian Supreme Court - Napster_EN – page 8
how access is given. It may be possible
to find links that are coded in such a
way that they must be said not to have
been accessible [to the public], but this
has not been particularly illuminated to
the Supreme Court.
(48) There can be no doubt that by
making a web-address known by
reproducing it on the Internet is
accessibility.
(49) When the Copyright Act was
enacted in 1961 the problem of today
was not present. What makes the
evaluation of the principal statement
difficult is exactly the technical
possibilities that the Internet and
different software gives. Some efforts
have been made by legislators as to
evaluate liability etc. related to this new
technique. I mention the implementation
of the E-commerce Directive, see
Ot.prp. no. 4 (2003-2004)24 and the
work on the revision of the Copyright
Act. But liability in connection with
linking has not really been dealt with.
(50) The Swedish Tommy Olsson
case dealt also with sound files made
accessible through links on Olsson’s
homepage. Högsta domstolen25 regarded
this as “public presentation”. The case
was a criminal case, and Olsson was
acquitted because public presentation of
a sound recording was not covered by
the recording producer’s sole and
exclusive right, and it was the record
producers that were offended in the
case.
(51) The opinion of the German
Supreme Court in 2003 in the Paperboy
case, which I have mentioned before,
dealt with another issue and facts, but
24
Translator: White paper from Odelstinget
[Second Chamber of the Norwegian Parliament]
on the proposal on implementing the EU E-
Commerce Directive into Norwegian Law.
25
Translator: The Swedish Supreme Court.
 Unofficial Translation of the “Norwegian Napster” case
clearly pulls in another direction. The
case was presented to the26 Supreme
Court in translation by state certified
translator Nils Nordang. The case dealt
with material that legally was placed on
the Net, as opposed to the present case.
On the basis of German law, the act of
making a direct-link to such material
was not regarded as a violation of the
copyright law, but rather as a reference
to the work in a way that just made
access easier for the net-users to get a
work that already was accessible for the
users. Regarding the linker’s operation,
the translation states in part:27
“He does not himself make the
protected work accessible for
downloading by the public and neither
does he himself communicate the work
to third-parties on request. For a user
that does not yet know the URL or a
precise description for the reference to
the website on the Internet, the access to
work is indeed first made possible by
the help of the hyperlink and thereby in
the literal sense is the work made
accessible; but this is not any different
than a reference to a publication in a
footnote in a printed paper or on a
website.”
(52) I remark that the designation
“URL” indicates the address of a
website on the Internet.
(53) The Copyright Act has its
background in Nordic co-operation, and
the consideration of Nordic unity is
important for the evaluation of our case,
although the decision from the Högsta
domstolen has been criticized and in
legal literature the opinions have been
divided on the question on liability for
linking. On its face the link can appear
to be access to the work. The Swedish
26
Translator: Norwegian.
27
Translator: HERE re-translated into English from
the Norwegian decision, not the original German
decision.
Norwegian Supreme Court - Napster_EN – page 9
decision did not discuss another issue
which to me is a special problem – that
the music files also could have been
reached by information of the web-
addresses on napster.no. Even though
these web addresses considered as text
are complicated, to copy them and paste
them into the address-field is easy. It
would give the same direct access.
(54) When illegal accessibility can
be combined with both punishment and
civil liability there needs to be a
reasonable sufficient reason why use of
one method is affected but not the other.
The appealing parties have not been able
to give any sufficient reason for this,
and I find it extremely difficult.
Furthermore, the Copyright Act was not
written with thought of the technical
evolution we have seen in the last few
years, with the result that the Act at
present is under reconsideration in the
Department with the aim of amendments
in part because of this.
(55) The close analogy between
direct linking to a website and giving
information of a website’s address is
further illustrated by the development of
accessible software in relation to the
Internet. For both e-mail and ord-
processing can be found software that
recognizes an Internet address. Since it
is so much easier just to click on a link,
the software automatically makes an
address available through a click, that is,
it converts it to a direct-link. Thus, pure
and simple this is how references and
footnotes that state a net-address can be
changed by the software to direct-links.
This could create problems if a
reference on this basis should be
regarded as accessibility.
(56) The parties have tried to
illuminate the consequences of
regarding the linking as accessibility.
The starting point must be that linking,
both to legal and illegal uploaded
material, only can take place with the
 Unofficial Translation of the “Norwegian Napster” case
owner’s consent. The appealing parties
have referred to views in theory which
hold that placing something on the
Internet must be regarded as consent to
linking. As an example, I quote
professor dr. juris Ole-Andreas
Rognstad in Festskrift til28 Mogens
Koktvedgaard (2003) page 472:
“There is no reason for
requiring the originator’s consent to
this in general. The problem can be
solved in the same way as the
“consumption-problem”, through a
copyright default rule: Consent for
use of the work is regarded as
covering the normal and usual
linking to the pages. Here it is a
question of the more definite limits
of the default rule. However, in this
connection that is another issue.”
(57) Much can be achieved by
reading consent into the normal
situation, but there is also a question of
defining limits that can be bases for both
doubt and disputes. Therefore,
consideration of the consequences is a
contributing factor for me to hold that
the case must be decided on the
subsidiary basis. This points precisely to
linking of illegal material, and it is such
linking the appealing parties seeks to
stop or at least reduce.
(58) I now deal with the subsidiary
basis.
(59) Pursuant to §55 first para. of
the Copyright Act, compensation for
harm in the sense of §54 can be given on
the basis of the ordinary damage rules.
Aiding is punishable after §54 second
para. It is clear [from the text] and also
from the preparatory work to the law
that damages can be awarded even if
there is no basis for criminal liability.
The usual requirements for evidence in
the field of damages is being used, not
28
Translator: Homage Volume to
Norwegian Supreme Court - Napster_EN – page 10
the strict requirements for evidence of
both objective and subjective facts in the
criminal law.
(60) The appealing parties have
alleged that A with intent has
contributed to the accessibility of the
music on the Internet.
(61) I first deal with the claim from
TONO29 and NCB.30 The provision in
§54 first para. letter a covers amongst
others violation of the protection of the
copyright pursuant to §2.
(62) The intermediate court held
that the uploaders’ illegal acts were
completed when the music was
uploaded and that there thereby was no
basis for liability for contribution. I do
not agree. The criminal provision targets
“to violate provisions that protects
copyright”,31 and here the uploader’s
violation consists of making the music
accessible. It cannot be derived from the
wording that the violation ceases when
the uploading is finished in the technical
sense, and to me such an understanding
is very unnatural. In my opinion the
violation of copyright continues as long
as the uploader lets the music stay on
the Internet. I add that it would be
strange if the [statute of] limitation for
such a violation should begin to run
from the time the uploading is finished.
(63) A has alleged that if the linking
cannot be regarded as accessibility, then
there should not be any basis for liability
for aiding. I do not agree with this
argumentation. It is not a requirement in
criminal law that the aiding act in itself
has to be illegal. The linking has
increased the effect of the uploader’s
acts by increasing the accessibility to the
29
Translator: The Norwegian organization for
collecting copyright fees for music and distributing it
to the respective copyright owners.
30
Translator: Norwegian Copyright Bureau.
31
“å overtre bestemmelser gitt til vern for
opphavsretten”.
 Unofficial Translation of the “Norwegian Napster” case
music. A himself has explained that the
users generally could not find the music
files without the links.
(64) It is of no importance to the
issue of aiding whether the uploaders
had knowledge of A’s operation, see
Johs. Andenæs, Alminnelig strafferett32
(5 ed., 2004) page 327.
(65) Whether the linking should be
regarded as aiding requiring a remedy of
damages must depend on an evaluation
of the specific facts. There must be
drawn a limit from a general “unlawful”
reservation. I refer to Andenæs page 154
and mention briefly that he states that
the term unlawful often can be
translated to include “improper”,
“unwarrantably”, “blameworthy” or
similar characterizations.
(66) The principal and the aider
shall be judged on basis of their own
conditions. This was held already in Rt-
1908-790. I refer to Andenæs page 338.
I can also refer to Erling Johannes
Husabø, Straffeansvarets periferi33
(1999) especially page 255. He notes
that “aiders can be prosecuted in
Norway both in the case where the
aiding act is “done” in the country (§12
first part of the Penal Code) and were
“the result has happened in or is aimed”
at this county ((§12 last part)”. Thus, it
is of no importance if the uploaders
could be punished pursuant to the law of
the country in which they were residing
- something that is not stated in the
record.
(67) In my opinion, A’s acts are to
be regarded as aiding that is both
intentional and extremely blameworthy.
His aim with napster.no was exactly to
give others access to the music. The
32
Translator: General Criminal Law, a treatise by a
famous Norwegian Law Professor.
33
Translator: The Periphery of the Liability to
Punishment.
Norwegian Supreme Court - Napster_EN – page 11
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
 Unofficial Translation of the “Norwegian Napster” case
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
Norwegian Supreme Court - Napster_EN – page 12
and record-producers embraced by §58
of the Copyright Act or the foreign
country rule. As for artists that do not
have citizenship in or are domiciled in
the E.U. and as for producers outside the
E.U. he asserts these are not covered by
the protection.
(76) I do not agree as for the record-
producers. §58 second para., third
sentence states:
“The provision in §45
concerning the right to make copies
shall apply for the benefit of all
sound and film fixations.”
(77) When the question is the
producers protection against production
of copies pursuant to §45, there exists
no geographical limitation as to who is
covered. Thus, the uploaders’ produc-
tion of copies is covered by the
Copyright Act, and A has aided the
uploaders to make available copies that
were produced in violation of §45.
(78) The provision in §58 second
para., third sentence does not cover
artists. This must mean that chapter 5 of
the Act only protects them against
recording of their presentations to the
extent provided by other parts of §58 or
by the foreign country rule. The
provisions of chapter 5 of the Act which
the property owners embrace also limit
the scope of §42. Since §54 first para.
letter d covers publication of recordings
as mentioned in §42, I cannot see other
than this only covers those artists that
are protected by chapter 5. As §45 does
not cover artists, I can not see that they
can plead that the recordings are
violating this provision.
(79) I have reached the opinion that
A’s liability for damages to the artists
must be limited to those artists that are
embraced by §58 or by the foreign
country rule. It has been asserted by the
record companies that even if such a
 Unofficial Translation of the “Norwegian Napster” case

limitation has to be made, this gives no

reason to reduce the total amount of (83) Judge Mitsem: Likewise.
damages decided by the trial court as the
exclusion must be regarded as moderate (84) Judge Bruzeluis: Likewise.
as reasoned by the trial court. I agree.
(85) Judge Aasland: Likewise.
(80) The case has raised
fundamental questions, which are of (86) According to the votes the
first impression for the Supreme Court. I Supreme Court made the following
find the costs should not be awarded for
any of the courts. decision:

(81) I vote for the following 1. 1. The decision of the

decision: court of first instance is
1. The decision of the court of affirmed.
first instance is affirmed. 2. No cost is awarded in
2. No cost is awarded in relation relation to the cases
to the cases before the appeal court before the appeal court
and the Supreme Court. and the Supreme Court.

(82) Judge Oftedal Broch: I am in

overall and in the decision with first END of Document
voting.

Norwegian Supreme Court - Napster_EN – page 13