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9 August 2019Michiel Rijsdijk and Marlies Wiegerinck

Netherlands jurisdiction report: Anti-piracy group gets another go

The parties were given the opportunity to comment on the proposal. On June 7, 2019 the Supreme Court formulated the final questions, as set out below.

Usenet

Usenet is a worldwide platform for the sharing of messages, existing since 1979 (longer than the internet). It consists of hierarchical news groups, classified by topic. Users can find messages by looking at these news groups or by using a unique message ID. When a user places a message on Usenet, it is transmitted to all of the many Usenet providers which, in turn, store all the messages on their servers during a retention period.

It is an easy and straightforward process to upload and/or download files containing, for instance, films and music, through Usenet. These files are split up in ‘binaries’, which are alphanumerical messages, and stored, as such, on Usenet. Persons wishing to access the content behind these binaries has only to use a certain type of software (not offered by NSE itself) which can be used to fit these binaries back together to recreate the original file.

Proceedings before the district and appeal courts

In 2011, the District Court of Amsterdam rendered several injunctions, which forced NSE to end its operations. The Appeal Court has reversed this judgment. Although it agreed with the lower court that communications to the public were occurring, it found that NSE’s activities amounted to merely acting as a conduit (article 12 of the Electronic Commerce Directive) when it comes to the passing along of messages of its own users, and hosting (article 14 of the Electronic Commerce Directive) with respect to the passing-along of messages of users of other providers.

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