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REMISS DS 2001:13
TPB magistrate Tomas Norström didn't want the EU's opinions. He had his own.
STOCKHOLM (Rixstep) -- Tomas Norström, magistrate in the trial of The Pirate Bay, was petitioned by Per E Samuelsson to get a preliminary judgement from the European Court. He summarily denied the petition. Here's why - several years earlier he demonstrated personal opposition to the European Court's opinion in the matter.
This is a translation of a document from the IP lobby organisation Svenska föreningen för Industriellt Rättskydd where Tomas Norström presides as a member of the board of directors.
The document details SFIR's opinion on whether Internet providers shall be held responsible for the contents of traffic passing through or temporarily cached in their networks.
The Swedish Association for the Protection of Industrial Rights, who have been granted the opportunity to comment on proposal Ds 2001:13 for the implementation of the European parliament's and the European Council's directive 2000/31/EG from 8 June 2000, shall hereby cite the following.
The proposal raises a number of disparate legal issues. The realm of SFIR activities - intellectual property rights and in particular industrial protection with copyright in a broad sense and market law - however justify that a great part of what is proposed is not subject to this association's deliberations.
Goods purchased online are often the subject of copyright claims. It can be their branding with logos, their literary or artistic nature or form. The goods can be patent protected products etc. This also applies to online services such as licensing for the use of copyright protected intellectual property.
The association note in agreement by way of an introduction that the limiitations in the principles of the country of origin with regard to the legal rules for publication do not affect intellectual property rights. The proposal's 4 § 8, that intellectual property rights generally are not covered by the proposed rules in 6—9 §§, are approved.
The association however call attention to the fact that the memo does not include a position for exception to the right granted to individuals through the law (1978:800) concerning the right to name and picture in advertisement. Even the provision in 5 § concerning the freedom for the parties to choose their contract is approved. (In the legal wording for 5 § the preposition 'on' should be replaced by the preposition 'for'.)
It is the proposed formulation for Swedish law for the responsibility of Internet operators as middlemen which is the main concern of SFIR here.
Regarding the statement in the memo on page 117 'concerning responsibility for middlemen' the association find cause to recall that the question of culpability for infringement of copyright does not seem to have been given a clear answer either in law or in legal practice and the same should apply in cases of infringement of brand names.
A general rule for exception from culpability for these cases cannot in the opinion of this association be found.
The association believe there must be demands for responsibility on service providers as middlemen. These demands need not be solely related to their connection to the contents of what is being transferred but also to how the middlemen have established their services technically, financially, or personally so as to prevent conflicts with the interests that uphold the rules of responsibility in their relation to the transfer of contents.
The directive does not seem to create any hindrance to such a widening of responsibility. Whosoever creates schemes so as to not be notified of the illegality of the information or whosoever creates hindrances to receive such notifications should herewith be held responsible.
Freedom from responsibility should not generally apply to anyone who establishes an operation as a service provider in order to establish a system which makes swift intervention impossible or otherwise implies circumvention of the objectives which support the consideration of responsibility according to the purposes of the directive.
It should further be clarified that the initialisation of a transfer according to 17 § shall apply to the marketing of such a service as a middleman which by its type is dedicated to the transfer that comprises objectionable contents. This applies regardless of evidence that the marketing in question has in fact led to the unfair transfer of contents from someone to whomever the marketing has targeted.
Finally it can be said that in 19 § 1 st 1 the expression 'the illegal information or operation' should be replaced by 'illegal information or operation' inasmuch as the illegality is not previously cited in the provision.
This opinion has been prepared for SFIR by professor emeritus JD Gunnar W Karnell and has been processed at the association's board meeting 5 June 2001.
Stockholm 5 June 2001
Editor's note: legalese in any language is a bitch - especially for so called 'legal experts'. Legal translations by their very nature are going to be unwieldy. Every effort has been made in the above translation to retain both the excessive 'wordiness' and the general feel of the original document. If the reader is repeatedly perplexed by the formulations therein it's highly likely this was the intention of the original author. However the portent should stand out clearly: people hyperlinking on the Internet are responsible for the contents of the data they hyperlink to. And Tomas Norström who presided over the trial of The Pirate Bay sits on the board of SIFR who approved submission of the above document.
The EU directive on e-commerce of 8 June 2000 does not seem to have been affected by this document but the document does represent the opinion of SIFR and board member Tomas Norström who denied Per E Samuelsson's petition to obtain a preliminary judgement from the European Court in precisely this matter.
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