First Norwegian verdict on hyperlinks

On 27 January 2005 the Norwegian Supreme Court ruled on old case; the existence of the website napster.no, which Norwegian internet users could use in 2001 to find music files (not more than 170 in practice) on the Napster file-sharing system. The owner of the site is found guilty of accessory copyright infringement, for having contributed to make the copyright protected music files available to the public.

The Court states that it is beyond doubt that making a web-address known on a website does not constitute a ‘making available to the public’, regardless of whether or not the link refers to a web-address containing legally or illegally published material. Whether a web-address is expressed on the Internet or in a newspaper is immaterial.

If linking were to be considered as the ‘making available to the public’, the Court writes, every link, be it to legally or illegally published copyright protected material would require prior authorisation from the rightholder. This was exactly what the music industry claimed. But the court said this was too complicated a reasoning and therefore decided to only look at accessory liability.

In the appeal procedure, the court of second instance had rejected this claim, because it said that the uploaders’ illegal acts stopped at the point in time when the music was uploaded. But the Supreme Court finds an uploader liable ‘as long as the uploader makes the music available on the Internet.’ Bruviks contention – that if the linking was not considered as making available to the public, there could be no legal basis for accessory liability – was rejected by the Supreme Court stating that it is not a requirement in criminal law that the accessory act in itself must be illegal. The linking enhanced the effect of the uploaders’ acts by increasing the availability of the music.

Similar to the US Grokster case, the Norwegian Supreme Court states further that Bruvik acted wilfully, referring to the introductory text on the homepage: “Welcome to napster.no. You are now visiting Norway’s largest and best website with music free of charge. Here you may download as much music as you desire.”

The owner must pay an unspecified compensation for damages, related to the amount of users of the website that otherwise would have bought the CDs.

Krog comments: “It is the first case of its kind in Norway, and one of the first in Europe. The case is relevant for other jurisdictions as well since the Norwegian Copyright Act is a result of international agreements such as the Bern Convention and the EEA agreement with the EU.”

Krog: Summary and link to extensive analysis of the case (14.05.2005)
http://blogs.law.harvard.edu/ugasser/discuss/msgReader$76?mode=topic

(Thanks to Georg Philip Krog, doctoral researcher in Private International Law, University of Oslo)