Confiscation of the right to use a domain name

Supreme Court judgment 17 September 2019 , HR-2019-1743-A, (case no. 19-057105STR-HRET), criminal case, appeal against judgment.

Imcasreg8 (Counsel John Christian Elden) v. The Public Prosecution Authority (Counsel Elisabeth Harbo-Lervik)

Justices: Indreberg, Ringnes, Arntzen, Høgetveit Berg, Thyness

The Court of Appeal had allowed confiscation of the right to use the domain name in favour of the State in accordance with section 69, cf. section 75 of the Penal Code. is a website that contained links to other websites from where the software Popcorn Time could be downloaded, as well as instructions for downloading and other information. Popcorn Time and variants thereof are used in a large scale for illegal distribution of films and TV series, which causes considerable losses for the copyright owners. The confiscation order on which the judgment was based, was directed towards the holder of the right of use, since the domain's real owner was unknown, see section 74 of the Penal Code. The Supreme Court found that the content on the website was covered by the penal provision on contribution to copyright infringement in section 54 subsection 1 (a) of the 1961 Copyright Act, cf. section 15 of the Penal Code. It was assumed that the infringement continued for as long as the relevant work was available online. The requirement of contribution to a criminal act was considered met. The confiscation did not constitute a violation of Article 100 of the Constitution or Article 10 of the European Convention on Human Rights. The Court did not consider whether the exception from the requirement of guilt under section 69 of the Penal Code contravened Article 7 of the Convention, as such a requirement in any case was met. However, when a confiscation order is directed at the holder of a right of use under section 74 of the Penal Code, it is not a requirement that this right holder is guilty. 

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