PRIMARY COURT OF STOCKHOLMRULINGCase nr B 7-3475-96
Sect. 7:11997-05-07

given in Stockholm




Plaintiff
Religious Technology Center, 6331 Hollywood Boulevard, Suite 1200,
LOS ANGELES, CA 90028, USA

Representative: advokat Wilhelm Dahlborn and jur kand Pär Leander,
Dahlman Magnusson Advokatbyrå, Box 7009, 103 86 STOCKHOLM

Defendant
ZENON Basil Panoussis, Högbergsgatan 64,118 54 Stockholm

Representative and appointed legal aid attorney: advokat Kerstin Calissendorff,
Advokatfirman Cederquist KB, Box 1670, 111 96 STOCKHOLM


Ruling

1. Religious Technology Center's motions are denied

2. For the defence of Zenon Panoussis, Kerstin Calissendorff is granted remuneration from public funds with forty-five thousand (45 000) crowns for work. 11 250 crowns of this sum are value-added tax

3. Religious Technology Center shall compensate the state for the costs of Zenon Panoussis' defence with forty-five thousand (45 000) crowns. The court reminds that Religious Technology Center has posted a collateral according to the law (1980:307) on the obligation for foreign plaintiffs to post collateral for litigation costs





Postal addressVisiting addressTelephoneFacsimileOffice hours
Box 8307Flemminggatan 1408-657 50 0008-657 52 959.00 - 12.00
104 20 STOCKHOLM13.00 - 15.00


The matter

In article 53 a first and second paragraphs of the law (1960:729) on copyright to literary and art works (hereafter copyright law) it is stated:

Upon motion of the author or the owner of his rights or of he who by grant has the right to use the work, the court may forbid him who takes such action that constitutes infringement or breach as designated in article 53, to proceed with the action.

If the plaintiff shows probable cause that an action constituting infrigement or breach as designated in article 53 is taking place and if it can be reasonably feared that the defendant, by continuing the action, diminishes the value of the exclusive rights that arise from copyright, the court may order injunction at penalty of fine for the time until the case is finally decided or other decision is made. Before such a injunction is ordered, the defendant shall have the opportunity to utter himself, if not a delay would entail risk of damage.

According to the record of the primary court of Stockholm for the 4th September 1996 in case T 7-866-96, Religious Technology Center (hereafter RTC) had motioned that the court, without previously giving Zenon Panoussis the opportunity to utter himself, would pass an injunction at penalty of fine for him to take any action that constitutes continued infringement in RTC's copyright to written material called OT II, OT III and NOTs (The Material), whether such action was reproduction and distribution of The Material in electronic computer systems and networks or in the form of magazines, books or other pritned matter, computer diskettes, other information carrying material or in other ways.

The actions that were held against Zenon Panoussis were

that he had copied The Material to his hard disk and made it available to the public through an "upload" to his webpage and through a "newsgroup" and

that he had made it possible for others to read, copy and distribute The Material by connecting themselves to the Internet through the public telephone network.

In a decision the same day the court prohibited Zenon Panoussis at penalty of 50'000 crowns to take such actions, whereby the words "in other ways" were left out.

The decision was serviced to Zenon Panoussis around 7 p.m. on the same day.

The RTC has motioned that the set fine shall be levied and thereby adduced the following acts:

Zenon Panoussis has on the 6th September 1996 in Stockholm produced partly one printout on paper of The Material, fetched from an electronic record stored on computer medium and partly a paper copy of The Material produced by the photocopying of the above-mentioned printout. Panoussis has thereafter, on the same day, filed the paper copy that was produced by photocopying with the primary court of Stockholm in case T 7-866-96. RTC alleges that Panoussis' actions constitute unlawful reproduction and distribution of the material.

2. Zenon Panoussis has on the 9th September 1996 handed over copies of The Material to a number of persons. RTC alleges that Panoussis through this act has unlawfully distributed The Material in violation of the court's injunction.

RTC has maintained that The Material has not been released with the consent of the author.

Zenon Panoussis has admitted that he has taken the actions described by RTC, but has opposed RTC's motion. In support of his position he has principally alleged: The injunction may not be extended further than to the continuation of an ongoing action. RTC does not have the copyright to the material, though this fact is not pleaded in this context. The Material has been released. The production of copies according to paragraph 1 was for personal use. Irrespective of the situation with regard to that, he had the right to produce copies to file with the court. The purpose of the filing was to show which text he had; RTC had only filed The Material in masked form. That he also may have wanted to take advantage of the principle of publicity in order to spread knowledge of The Material is irrelevant in this context. What is stated in paragraph 2 does not mean that the work has been made available to the public in the sense of the copyright law. The court could not lawfully prohibit him to do what is held against him in this paragraph. It is namely not part of the author's exclusive rights. In the extent that his actions fall within the injunction, his acts were excusable; the fine shall therefore be reduced.

RTC has motioned for award of legal costs.

Motives of the ruling

In order that an interim injunction may fullfill its purpose, i.e. to quickly interrupt an ongoing proceeding, violations must as a rule be punishable notwithstanding that different questions on the underlying circumstances are not decided through a final ruling. The question of the correctness of the injunction can instead be reconsidered or brought to higher court. As long as the injunction is valid, it must be respected by the person it targets. On the contrary, questions on the legality of the order or on the formulation of the injunction can be brought up in the case concerning the ordering of the fine. Also the right meaning of the injunction and the defendant's reasonable interpretation of it can be brought forward. In accordance with this it is now not considered whether RTC has copyright to The Material.

Electronically stored documents are distinguished by the fact that they can be made available in several places. With the help of appropriate software, the ones and zeroes can be presented as a humanly comprehendable text or image. Translating this reality to the copyright law's rules about the production of copies of a work meets with difficulties. A wide-spread opinion seems to be that every time a document is permanently saved in a new place or at least at a new station, this action, which sometimes is performed automatically, constitutes production of a copy. This point of view appears to be based on the rule in article 2 of the copyright law, according to which the transfer of a work to a device by which the work can be reproduced is considered as production of copy (see Olsson: Upphovsrättslagstiftningen, p 56 f).

In face of the interim decision RTC had - expressed in other words than those used by the orgaization - alleged that Zenon Panoussis had placed The Material on his hard disk, with an Internet distributor, available to the world's Internet-connected users, and in a network (newsgroup) as well as that he by the latter measures had made the work available to the public. According to the predominant view, which the court has no reason to question, had Zenon Panoussis thus produced copies of the work. The court had thereby justification for its decision to prohibit him to perform "reproduction" of the work.

Zenon Panoussis has thereafter produced two copies of The Material and filed one of them with the court in a case where it is alleged that he has infringed upon RTC's copyright. The purpose of this was according to him to prove which material he had access to and thereby illustrate that it need not be the work to which RTC was claiming copyright. He has maintained that he thereby used his right to produce single copies for personal use. RTC has objected that this right only applies to released works and that The Material has not been lawfully released to the public. The parties do not have different views on the significance of such a release (see article 12, first paragraph and article 8, first paragraph of the copyright law) but rather in the material question. Evidence has not been presented.
It is part of the author's basic rights to determine when a work will be made available to the public. Obviously the burden of evidence lies on him who claims that the work has been released. The burden of evidence should be distributed in the same way if someone has been forbidden to produce copies in violation of the rules of copyright law and he alleges that further production has taken place based on the provisions on personal use. And when interim injunctions are concerned, it can be questioned whether the punishment of violations should be delayed by the defendant claiming that he wants to present evidence in the matter. In such cases it can instead be considered to take into consideration the defendant's justifiable notion about a circumstance that limits responsibility.

However it is a party's basic right to produce documents in order to file them in a case to which he is a party if, as in the present instance, there is reason to adduce the contents. An injunction does not comprise such a measure. As his reson for producing two copies, Zenon Panoussis has claimed that the first copy was not in such a condition that was appropriate for the court. Irrespective of the truthfulness of the statement, the free area is to include the keeping of one copy of what has been filed in the case.

RTC has alleged that Zenon Panoussis intended to use the Swedish principle of publicity to unlawfully make The Material available to the public. Such subjective excess lacks however significance for the question of ordering the fine.

For the rest, RTC has claimed that Zenon Panoussis has handed a number of persons copies of the material. The prohibition of distribution of the copyright law is limited according to article 2, first paragraph, to making the work available to the public. In this context "a number of persons" should be interpreted in a way favourable to Zenon Panoussis. With this basis, the group of persons can in numbers and composition be other than the one meant by the rule of the law. Irrespective of whether The Material has been released with the consent of the author or not, it has thus not been shown that Panoussis has acted in violation of the injunction.

RTC's motions shall be denied.

For the defence of Zenon Panoussis, Kerstin Calissendorff has requested remuneration from public funds with 55'500 crowns including value-added tax, for work during 37 hours. The court shares her opinion that, because of her special knowledge of copyright, which incidentally she exploited meritoriously, she should be allowed to debit an hourly rate of 1'200 crowns plus value-added tax. This knowledge should lead to that she faster than other defence attorneys finds relevant arguments. She has also been able to use the knowledge that she won by representing in the case in which the injunction was ordered. On the other hand, a number of circumstances have lead to time consumption. Among these are probably continuous contacts with the client. Among these is also the change of RTC's motions during the process. With consideration of the said, the court judges that 30 hours is a reasonable time expenditure.

According to chapter 18 article 13 compared to chapter 31 article 11 first paragraph procedural law, RTC shall be ordered to reimbourse the state for the cost of Zenon Panoussis' defence. The organization has posted collateral according to the law (1980:307) on the obligation for foreign plaintiffs to post collateral for litigation costs (exhibit 53). This collateral ought to include the reimboursement obligation now concerned (see bill 1979/80:78 p 10).

How to appeal, see attachment (Dv 400)

Appeals shall be addressed to the Svea appelate court and must have arrived at the primary court not later than on 28 May 1997

[signature]


Rolf Nöteberg


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