Danish Supreme Court Upholds Required Blocking Of The Pirate Bay; Says ISPs Liable For Content

from the something-rotten? dept

Thu, May 27th 2010 11:09pm — Mike Masnick

While courts in nearby Norway rejected attempts to force ISP Telenor to block The Pirate Bay, the story appears to be quite different in Denmark. There, Telenor (which had been Tele2) was ordered to block The Pirate Bay, followed by a higher court upholding the block. Now, the Danish Supreme Court has weighed in and again insists that it's perfectly fine for courts to demand an ISP totally block a website.

Apparently the ruling hinged on a questionable bit of Danish copyright law that makes an ISP liable for the content sent by users, because "the ISP makes temporary copies of small fragments of the copyrighted work as IP packets pass their routers." Of course, if you read the law that way, that puts tremendous liability on any ISP. It seems wholly unreasonable to interpret the law that way -- and, in fact, some point out that this appears to go against EU law. The article also notes that the questionable clause in Danish copyright law that puts this burden on ISPs was written by a guy who (you guessed it) now works for the recording industry. Funny how that works.

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Filed Under: copyright, denmark, eu, internet blocks, liability, the pirate bay
Companies: telenor, the pirate

15 Comments

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Anonymous Coward, 28 May 2010 @ 12:22am

Wow, just wow.

I'm surprised the court didnt suggest "ban the interwebs"
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Anonymous Coward, 28 May 2010 @ 2:31am

Next Up: Building Owners
Because if someone plays an infringing recording in a building, a fragment of that recording is stored for a short while as it reverberates within the building. Therefore, the building owner becomes responsible for infringement!
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Svante Jorgensen (profile), 28 May 2010 @ 2:47am

Disappointing
I live in Denmark, and I'm very disappointed with the ruling. The only positive thing to say about it is that the court is technically illiterate enough to accept a DNS redirect as a block. So if we use the direct IP, OpenDNS or any other DNS than our ISPs default, then we get around the ban.
But I don't know if I should laugh or cry about that.
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Fletcher, 28 May 2010 @ 3:00am

Does passing e-mail infringe?
Maybe Denmark is different, but I thought every original expression was automatically covered by copyright. What can the ISPs carry that doen't infringe under this ruling?
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Tor (profile), 28 May 2010 @ 4:28am

Information society directive
I don't understand how this can avoid contradicting the EU Infosoc directive that states:

Article 5

Exceptions and limitations

1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:

(a) a transmission in a network between third parties by an intermediary, or

(b) a lawful use

of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2.
and:

(33) The exclusive right of reproduction should be subject to an exception to allow certain acts of temporary reproduction, which are transient or incidental reproductions, forming an integral and essential part of a technological process and carried out for the sole purpose of enabling either efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject-matter to be made. The acts of reproduction concerned should have no separate economic value on their own. To the extent that they meet these conditions, this exception should include acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently, provided that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information. A use should be considered lawful where it is authorised by the rightholder or not restricted by law.

It almost seems as if they have misread the "or" that connects (a) and (b) in Article 5 as an "and".
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Anonymous Coward, 28 May 2010 @ 6:56am

can they stop google from allowing filetype:torrent ??
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Anonymous Coward, 28 May 2010 @ 7:33am

Re:
Well sure, you can support any argument with logic. I don't, however, think that is the direction they are taking.
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Vic, 28 May 2010 @ 10:22am

I'd be in serious trouble in Denmark!
I just have listened to some music on the radio. And while listening, I > was making mental "temporary copies of small fragments of the copyrighted work" in my brain as that music passed my ears!
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Anonymous Anti-Yellow Belly, 29 May 2010 @ 11:33am

If an ISP can be held liable for the data passing through its network, does that mean a phone company can be held liable for everything passing through its network? I'm not sure I see a whole lot of difference between the two.
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Boraxo (profile), 1 Jun 2010 @ 12:06pm

Phoning it in
I was on the phone the other day, and I could hear a song playing in the background while my friend droned on with some boring story. I'd better notify the RIAA to sue my cell provider.
Do these people realize The Pirate Bay is....a search engine? Really not much different from typing the same name in to google and adding "torrent"
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Ole Husgaard, 5 Jun 2010 @ 8:14am

Re: Information society directive
You are absolutely right. The Infosoc directive has not been correctly implemented into danish copyright law.

The highest ranking civil servant with responsibility for copyright law at the time we implemented Infosoc in Denmark was Peter Schønning. Today he is working for IFPI, and he is head of the IFPI team running the legal proceedings against Telenor.

And this error in implementing Infosoc, which Peter Schønning is responsible for, is the central legal argument in the court proceedings against Telenor.

It is a bit scary that Telenor did not even try to argue against IFPI on this point. But of course Telenor is just a random victim here, with no real interest in this. The parties that IFPI is trying to hit with these court proceedings (The Pirate Bay, and the danish internet users) do not even have the right to be heard by the court.
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Ole Husgaard, 5 Jun 2010 @ 8:32am

This was not a real court case
One important fact that almost all media seems to miss is that this is not a real court case. The court decision upheld by our Supreme Court is similar to a preliminary injunction in US law, and a real court case has not started and probably never will start.

The advantage for IFPI is that with this kind of court proceedings they do not have to show any evidence. If they can convince the court that their claims are "credible", they can get what they want.

This is not the first case of blocking here in Denmark where no evidence has been shown. IFPI has done the same several times before, and there has never been the following court case that our Code of Law suggests should follow a decision like this - the real court case, where IFPI actually has to prove their claims.

In one case (the blocking of allofmp3.com) we know for a fact that IFPI paid the ISP a significant amount of money to avoid the follow-up court case.
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The advantage for IFPI is coach outlet that with this kind of court proceedings they do not have to show any evidence. If they can convince the court that their claims are "credible", they can get what they want.

This is not the first case of blocking here in Denmark where no evidence has been shown. IFPI has done the same several times before, and there has coach outlet online never been the following court case that our Code of Law suggests should follow a decision like this - the real court case, where IFPI actually has to prove their claims.
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