Denmark and Pirate Bay: Take it to the European Court of Justice
I have written twice about Danish rulings that have forced ISPs to block access to certain web sites at the demand of IFPI Denmark, the recording industry organization. In October 2006 Danish ISP Tele2 was ordered to block the controversial Russian music downloading site AllofMP3.com. (Warning to all my cool pirates out there: This is sort of heavy legal stuff but potentially very important. UPDATE: I posted a summary and popular version of this tehcnical analysis. UPDATE 2: Read my most popular account of the whole issue where I also found that the Swedish government once again said that the Danish way would break EU law).
I read the court ruling quite carefully and reacted on my blog (in Swedish) with a gut reaction: This cannot be true! I was something of an internet pioneer and started Sweden's (maybe) first independent ISP in 1994. Now I am a writer, consultant, activist, analyst. I argued from a technical and network communications' point of view: If that legal interpretation is correct, then it would be impossible to run an ISP. If we apply that ruling consistently, all ISPs are massive law-breakers and we may as well close down the Internet. Hence, I argued, there must be something wrong with it.
I did not, however, make deeper research into the legal background.
Now I have. And I will claim that the interpretation of law in Denmark is not compatible with the Infosoc Directive, 2001/29/EG [PDF], that formed the basis of the copyright law that the Danish courts apply (Lov om Ophavsret). I invite law professors and scholars and anyone who wish to discuss this here on my blog or all over the net. Link this article! This is important. It is about the future of the whole Telecom and ISP industry because IFPI will now pressure other countries to apply it.
A few days ago a new ruling was issued in Denmark, where Tele2 was ordered to block access to The Pirate Bay, the Swedish file-sharing site of global fame and eternal glory, featured in Vanity Fair, Wired, Wall Street Journal, BBC and other places. This was big news, see e.g. the Reuters story. I commented in Swedish yesterday and was shocked to see that the court referred to the former case and repeated their mistaken reasoning. So I dug deeper into the legal issues and noted that the Swedish government has explicitly rejected the Danish interpretation as incompatible with the Infosoc Directive.
After that I have received communications from Denmark and also a reference to the Supreme Court case in Denmark that established the "case law" concerning this issue. Here are all three cases for download. In Danish of course:
- IFPI vs. TDC [PDF]: Supreme Court, U2006.1474H, Feb 10, 2006
- IFPI vs. Tele2 (AllofMP3) [PDF], Oct 25, 2006
- IFPI vs. DMT2/Tele2 (Pirate Bay) [PDF], Feb 5, 2008
So let us look at the Supreme Court judgment where this "case law" was established:
Internet Service Provider TDC had ADSL subscribers who used their connections to put up FTP servers at home and distributed music without permission from copyright holders. It was established that these subscribers performed copyright infringement. The question was: Could the ISP be forced to shut them down?
IFPI points out that according to Infosoc Directive Article 8.3:
"Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right".
Sure, so the question is now: How and under what circumstances?
Well, there is a point (59) in the preamble that gives a little more information:
"In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. Therefore, without prejudice to any other sanctions and remedies available, rightholders should have the possibility of applying for an injunction against an intermediary who carries a third party's infringement of a protected work or other subject-matter in a network. This possibility should be available even where the acts carried out by the intermediary are exempted under Article 5. The conditions and modalities relating to such injunctions should be left to the national law of the Member States".
OK, so there is leeway for each nation to regulate this. But can they do just anything? Certainly not. I now claim that the way that the Danish Supreme Court is implementing these injunctions is clearly breaking EU law as expressed in the Directive itself. And it does so in a blatant and shocking way which, if correct, would amount to the same as closing the net down. The EU legislators understood this risk so they put in a protection against such closure. It occurrs in the referred to Article 5.
But let us look at how the Danish courts have reasoned:
1) Copyright infringing traffic had been established, that travelled in TDC's network.
2) This traffic passed through TDC's routers
3) (Very) temporary copies were produced in these routers
4) Hence TDC itself was committing copyright infringement
5) In order to protect itself from committing a crime they had to block users/servers
My gut feeling from having started and run an ISP from 1994 to 2004 (Bahnhof) tells me: This cannot be correct. Internet traffic would be virtually impossible if routers of the carriers are regarded as committing copyright infringement as soon as unlicensed content passes between two parties on the Internet. Every node on the Internet would be liable for massive copyright infringement and we might as well close the whole thing down.
And I am right.
The Infosoc Directive explicitly allows such "copying" in Article 5, (which is expressed as an exception to and a limitation of the rights holders' exclusive rights):
"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."
This is non-negotiable. Every member state must accept it. Point 1 (a) says that "copying" in a router is always allowed. Now, the question is what that little "or" means when the article talks about "lawful use". The Danish court (mistaken) has a very different opinion from the Swedish government (correct). From the Danish case:
"TDC's transimssion af værkerne indebærer midlertidlig eksemplarfremstilling af den karakter, som er omhandlet i lovens § 11 a. TDC kan imidlertid - som erkændt - ikke påberåde sig tilladeligheden efter denne bestemmelse, idet denne forudsætter, at eksemplarfremstillingen sker på grundlag af et lovligt forlæg, jf. lovens § 11, stk 3. TDC's transmission indebærer derfor, at TDC objektivt krænker de ophavsrettigheder, som administreres af de indkærede ...".
Well, the court says that TDC does commit copyright infringement through transporting the data and "producing copies" in their routers since the "originals" are unauthorized. They refer to the Danish implementation of article 5.1 (= § 11 in the Danish Copyright Law)
That interpretation is plain wrong. There is nothing about "authorized originals" in Article 5.1. It seems the Danes are confused by point (b): "lawful use", and claim that this means "copies from authorized originals" (which is wrong but it does not matter for the argument here).
But think for one moment about it in purely logical terms: If 5.1 makes an exception for only "lawful use" under those other circumstances, there would be no need whatsoever for (a). Everything would be covered by (b) and (a) would be completely redundant information. Point (a) is an exception to (b). The whole point of (a) is to make Internet possible. The point is to allow routers to "make copies" of whatever information that passes through them.
This is confirmed by the Swedish Justice Department and Government when Sweden implemented the Infosoc Directive. These questions are discussed in great detail in the legislative proposal, which forms part of legal interpretation. It can be downloaded here in Swedish from the official government site: It is the top of the two PDFs there.
On page 94 they write (translated) about Article 5.1 (a) and (b):
"Hence the article differentiates between transmission of a work in a network (article 5.1.a) and the end-users utilization of a work (5.1.b)".. They go on to explain that 5.1.b. has to do with temporary copies at the end-users computer, such as web caches.
The Swedish legal proposal/backgrund tells us on p. 97 regarding 5.1:
"A few interested parties, e.g. the Swedish Antipiracy Bureau, have demanded that only such copies that are derived from an authorized original should be covered by the exception. To implement further conditions in Swedish law for temporary acts of reproduction would not be compatible with article 5.1. In addition, a requirement for an autorized original would entirely counteract the purpose of the article to make possible transmissions in a network between third parties as well as web-browsing. Hence, there can be no justififcation for demanding authorized originals in order to allow temporary acts of reproduction".
(As you can see there is no requirement for "authorized originals" for 5.1.b either, even if that is irrelevant for the Danish case, so my point about the "or" might not even have to be invoked. But what is "lawful use" doing in that point? Well it is defined in point (33) in the preamble and it is not what the Danes believe but not really relevant for the argument here).
So I really and honestly claim that the Danish Supreme Court is wrong and will be struck down in The Court of Justice of the European Communities, Curia (De Europæiske Fællesskabers Domstol). The Danish court has served a political, not a legal judgment. They have passively served the interest of a few record companies and taken a stand against all telecom and internet providers and internet users. Because their interpretation has one single implication: Close the Internet!
So what about Infosoc Directive Article 8 and point (59) where they talk about national leeway to make injunctions against intermediaries? Yes, according to the Directive such injunctions could and should be made possible under national law, although the intermediary does not commit copyright infringement through transporting the material via its network.
Now, there is a huge difference between saying:
(a) All information that passes a router constitutes copyright infringement if that information comes from an unauthorized copy. Therefore, in order to protect yourself from committing copyright infringement you have to block all these users on your own network or all these sites somewhere else on the Internet. (Danish cases)
(b) You do not commit copyright infringement simply through letting this information pass your router, since there is an explicit exception for that. But you have to block certain users or sites anyway since this is the best way to stop these others from committing copyright infringement. (Correct interpretation)
The former case is absolutely incompatible with the Internet. We could as well close the shop and go back to watching TV. Which may be the whole point of course.
As a free communications activist I do not support the latter case either. But it is very clear that it would be much harder to shut down communictaions in the second case. I have nothing to say about a national regulation that makes (b) possible, what it would entail, what evidence that infringement claims should be based on, how massive the infringements would have to be, if these infringing sources can be situated on other networks or whether they must be on your own and so forth. That is up to others to debate.
I have now shown why the Danish cases are not compatible with EU law and look forward to discussion everywhere. In media all over Europe. The Danish cases are dangerous and must be fought. The Danish state must be reprimanded and brought to justice. If they prevail we will neither have free speech, nor Internet anymore.
One final complaint. I must criticize the Telecom/Internet industry for being wimps. Your core business idea is challenged here: To transport data from A to B without being liable. And a court makes a blatantly mistaken judgment that risks all of Internet as we know it. And you just accept it.
Yes, I am a burning activits for freedom of communications. But isn't it odd that a writer/blogger have to dig deep into these issues and spend days researching them? I am not exactly making money from it unfortunately and need support to go on fighting for free communications, telecoms and ISPs, hint hint ...
P.S. There is an English translation of the AllofMP3 ruling by the Pro Piracy Lobby here. They apply the same reasoning as in the Supreme Court case although there are other differences of course. AllofMP3 was a site outside Tele2's own network. The TDC (Supreme Court) case had to do with users on its own network. But the basic claim that the routers perform copyright infringement is the same.
The Danish blocking of Pirate Bay was big news in the world since Reuters picked up the story. And of course all the Technology sites covered it, like The Register, and TorrentFreak,
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