It is found undisputed, that the website www.thepiratebay.org functions as an index and search engine which allow the users of the website to download files from each other.
Following the presentation of evidence it has been substantiated, that the major part of the material being exchanged between the users, is protected by the copyrights administered by the claimants, and that the claimants have not given their consent to such publication. Furthermore, it has been substantiated that the use of the website, which according to the information site www.alexa.com holds a 23. place among the most popular sites in Denmark, is somewhat diffused in Denmark.
The exchange of copyrighted material taking place among the users of the site – without the claimants consent – thus constitutes a violation of the copyrights for the audio and motion picture recordings and literary works administered by the claimants, to which the claimants hold the exclusive rights, cf. the Danish Copyright Act § 2, subsection 1.
The court finds the website www.thepiratebay.org to be functioning as a necessary and specifically created search engine for the unauthorised distribution of copyright protected works. Furthermore, the court finds the website’s function to be considered that of making copyright protected works available to the public in a manner to be compared with that of public performance, cf. the Danish Copyright Act §2, even if the www.thepiratebay.org is not itself responsible for the publication of copyrighted works online. The court in this connection emphasises the fact that the website, by means of its search function, is programmed with directs links to copyrighted materials hosted by its users, cf. UfR 2001.1572 V.
It is undisputed that costumers of the DMT2 Ltd. Telephone company have access to the website of www.thepiratebay.org and related sub pages and sub domains.
According to §2, subsection 2 of the Danish Copyright Act, any direct or indirect, temporary or permanent and full or partial reproduction is to be considered a reproduction, in any given way and in any given form. Any kind of copying is hereafter covered by §2.
The telephone company’s dissemination of access to the www.thepiratebay.org entails the transmission of copyright protected material through the company’s web. Hereafter, the court takes the view that the transmission of the works by DMT2 Ltd. entails temporary reproduction of the nature treated in §11 of the Danish Copyright Act. The fact that it is a temporary reproduction is to be given no significance, as the reproduction does not take place on a legal basis, cf. UfR 2006.1474 H, Københavns Fogedrets kendelse af 25. Oktober 2006 i sag FS 15124/2006 og Frederiksberg Fogedrets kendelse af 15. August 2007 i sag FS 7509/2007.
On this basis, the court finds that DMT2 Ltd., by giving its customers access to the www.thepiratebay.org, assists in the violation of the copyrights administered by the claimants, cf. the Danish Copyright Act §2, subsection 2, cf. subsection 1. The circumstance that the www.thepiratebay.org in a certain – even though limited – extend gives access to legal filesharing among the users of the website, is not found to legitimate the wrongful violations.
The County Court hereafter takes the view, that DMT2 Ltd. engages in actions that conflict with the rights of the claimants, cf. the Danish Administration of justice Act §642, subsection 1, nr. 1. The remaining grounds for injunction in accordance with the Danish Administration of justice Act §642 are found to be fulfilled as well, an the material presented to the County Court does not give any grounds for stating that an injunction against DMT2 Ltd. will cause damage or inconvenience in any evident disproportion with the claimants interest in such injunction, cf. the Danish Administration of justice Act §643, subsection 2.
It is ordered that:
It is prohibited to the DMT2 Ltd. to assist in the publication and reproduction of audio and motion picture recordings and literary works to which the claimants hold the exclusive copyrights, via the www.thepiratebay.org.
DMT2 Ltd. is ordered to undertake the adequate measures, suitable in the prevention of access for DMT2 Ltd. customers to the website of www.thepiratebay.org and related sub pages and sub domanis.
Case Closed
Court adjourned
Frederiksberg Fogedret d. 29/1 2008
Oversættelse: Nikolaj Heltoft
Denne side er sidst opdateret: onsdag 6. februar 2008 kl 13:37 | Udskriftsvenlig version
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