Dutch anti-piracy foundation walks the plank
The most popular method of digital piracy worldwide involves the use of so-called ‘torrents’. A large file, for example an illegally copied movie, is cut into thousands of small parts. The torrent is a small file containing metadata of the larger file, and how it has been cut. A special program (‘a client’) reads the torrent file, and downloads all the small parts through the Internet from users all around the world (‘peers’).
Once a small part is downloaded, it is also being sent (uploaded) to other users who request it. When all the small parts are downloaded, the main file is complete and the movie can be watched. Thus, all a user needs in order to download (copyrighted) material is a torrent. Torrents can be downloaded, for free, from many ‘indexing’ websites, the most notorious of which is called The Pirate Bay (TPB).
In a case between Ziggo & XS4All and BREIN, the Court of Appeal of The Hague was faced with the question of whether to limit services that provided access to TPB.
"Attorney General Cruz Villalón has already concluded that the measure of having a website blocked is not in principle disproportionate, simply because it isn’t very effective."
BREIN is a Dutch anti-piracy foundation of authors, artists, publishers, producers and distributors of music, films, games, interactive software and books. Ziggo and XS4All are both Internet service providers who provide Internet access to subscribers. In 2010, BREIN demanded that Ziggo c.s. be ordered to block specific Internet addresses that were used by TPB in order to reduce digital piracy. The provided services allowed access to the website of TPB and thus facilitated copyright infringement, the court agreed.
Ziggo c.s. appealed on the grounds that the measure wasn’t proportional to the resulting effect, as the block wasn’t effective and deprived Ziggo c.s. of its right to free entrepreneurship.
The High Court therefore had to determine the effectiveness of the block. Before doing so however, the High Court considered (agreeing with BREIN) that many of Ziggo c.s.’ subscribers downloaded copyrighted material using TPB as an ‘indexing’ website, that while downloading these subscribers were also uploading, and that most torrents on TPB are linked to copyrighted material. Ziggo c.s. could therefore be classified as an intermediary as mentioned in Article 8(3) of the EU Copyright Directive.
While downloading copyrighted material is not considered illegal in the Netherlands (excluding copyrighted software), uploading is. This is also true for small parts of copyrighted material in the case of uploading using torrents.
Referring to the L’Oréal/eBay case, the High Court considered that a remedy must be proportional to the goal/effect in mind. Interestingly, the High Court agreed with BREIN that uploading using torrents can infringe copyright, but it agreed with Ziggo c.s. that a block was not an effective measure and was disproportionate. Based on submitted reports, it considered that the block could easily be avoided by TPB by using new Internet addresses, or by subscribers by using a ‘proxy’ or simply by using one of the many other torrent websites.
Although the number of subscribers visiting TPB had decreased since the block was active, this wasn’t considered relevant (nor surprising as the website was blocked), since the total use of torrents hadn’t decreased and BREIN’s ultimate goal is to decrease copyright infringement. The block was considered to be an ineffective measure towards that goal. Because of this and the fact that Ziggo c.s. was affected in its free entrepreneurship, the High Court ruled the measure to be disproportionate and lifted the block.
BREIN has already announced it is considering appealing to the Supreme Court. This is understandable since most European courts have ruled otherwise, but also because the CJEU will soon rule in a similar Austrian case. Attorney General Cruz Villalón has already concluded that the measure of having a website blocked is not in principle disproportionate, simply because it isn’t very effective. Even if most subscribers manage to evade a block, some won’t. The national courts will need to weigh all relevant interests.
BREIN has walked the plank, and the block of TPB has been lifted. It would seem that in the Netherlands at least, an ineffective digital measure is likely to be disproportionate, clearing the way for digital piracy. Whether this ruling will stand remains to be seen, however, and the Dutch pirates’ victory may have been short-lived.
Michiel Rijsdijk is a partner at Arnold + Siedsma. He can be contacted at: mrijsdijk@arnold-siedsma.com
