Civile.it
Civile.it
"The Copyright Act includes a number of restrictions to the sole right which belongs to the
owner of the copyright to a specific work or a right. With reference to certain works and
rights, and under the provisions of § 12 of the Copyright Act, it is, inter alia, permitted to
produce copies for private use. Such a copy may not be used for any purpose other than
private use, i.e. it may not be made available to the general public. An important exception to
the right to produce copies for private use is when the original itself has been produced or
made available in contravention of § 2 of the Copyright Act"
...
"The defendants have argued that any complicity on their part has not taken place before the
completion of the principal offence. Some offences, continuous offences, are regarded as
taking place throughout the duration of a certain circumstance. One example of a continuous
offence is unlawful deprivation of liberty. The offence comes to an end only when the
circumstance which occasioned the commission of the offence ceases. The making available
which constitutes the principal offence in the indictment is, as far as the original seeder is
concerned, completed once he/she uploads the torrent file to The Pirate Bay’s website and
then starts making the work available to others. Other seeders have completed their individual
offences when, after downloading segments of the protected work, they have made it
available to others. Nor does anyone have to make available a whole work to be in breach of
the Copyright Act. The making available of a segment of a work is sufficient for the offence
to be completed (c.f., for example Ds 2007:29, p. 338). The offence continues for the full
duration of the making available. The criminal action – aiding and abetting a crime – for
which the defendants have been indicted refers, in each case, to the time before the principal
offences were completed.
In summary, the operation carried on by The Pirate Bay does, objectively, constitute
complicity in breach of the Copyright Act. The question is then whether the defendants can
be held responsible for this complicity. This would, firstly, require them to be in a position
where they can be held responsible for what took place within the framework of The Pirate
Bay’s operations. Secondly, their intent must cover all the objective circumstances on which
the offences are based."
...
"The fact that the defendants intentionally brought about the actual circumstances which
constituted aiding and abetting must be regarded as established. The defendants have,
however, argued that they should not be held liable since they have had no knowledge of the
existence of the rights or works specified in the indictment and, therefore, have not
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intentionally committed the principal offences. It has not been demonstrated that the
defendants knew that the specific works listed in the indictment had been made available via
The Pirate Bay. The defendants intent does not, however, have to cover the specific works
which it is alleged have been made available. It is, rather, sufficient for them to have had the
intent to bring about the existence of copyright-protected material on the website (c.f. NJA
2007 p. 929). The examination of the defendants, the letters from rightsholders published on
the website, The Pirate Bay, and the e-mail correspondence indicating that the operation
involved pirate copying make it clear that the defendants have been aware that copyrightprotected
works were available via the website, and were shared via the tracker embedded
within the framework of The Pirate Bay’s operation. Despite this knowledge, they have
elected to take no action to prevent the infringement of copyright. Based on their positions in
relation to the filesharing service, The Pirate Bay, they have, in the opinion of the District
Court, together and in collusion knowingly aided and abetted infringements of the Copyright
Act by the individual users."
