27 November 2014Jurisdiction reportsMichiel Rijsdijk

Dutch anti-piracy foundation walks the plank ... yet again

In the case, BREIN tried to force the ISPs to block their customers’ access to a particular website which facilitated copyright infringement. BREIN is still on a crusade against “online piracy”, and now focuses on another method of possible online copyright infringement: Usenet.

Usenet has existed since 1979 and can best be described as a modern-day online forum. Users are able to post messages to specific “news groups”, with each receiving its own ID. A message contains text and also a binary file, like a movie. To create the file, the text is coded by free software into an alphanumeric message that is stored on one of many Usenet Service Provider (USP) servers, which are spread throughout the world. These servers synchronise their messages, so that all servers show the same messages. In effect, the system is one giant “cloud”, with the difference that messages are automatically deleted from the service after a certain amount of time. The amount of time differs per server, and is called retention time. The Usenet service is not free, and is offered by the USPs.

In a recent case between BREIN and News-Service Europe (NSE), one of these USPs, the appellate court of Amsterdam gave an interim ruling. In short, BREIN accused NSE of copyright infringement and acting wrongfully by sustaining a system through which copyright content can be downloaded on a grand scale (Usenet).

To assess whether a possible infringement had taken place, the court first decided that the alphanumeric messages containing copyright material can be considered as copyright material. The fact that a program was needed to decode these messages does not change this, especially because the necessary software is freely available on the internet, much as with torrents. In short, according to the court, NSE offered access to illegal copyright material.

"once again a Dutch court has ruled that there is online copyright infringement, but the measures to counter it are wrong."

Good news for BREIN. NSE, however, invoked article 6:196c. This excludes liability for parties which, in our current information age, are a “mere conduit” of data. The court splits NSE’s activities in two: saving data on its servers, and sending this data (synchronising it) to other servers. Based on the article mentioned before, NSE can be excluded from liability. This is partly because sending the data is an automated, purely technical, process.

Second, when saving data on its servers, NSE is merely meeting requests from users who wish to save data. NSE does not take the initiative in what data to save. The fact that it determines the retention time does not change this.

However, based on article 6:196c NSE is also obliged to implement measures to counter infringement, and according to the court has effectively done so through notice and take down procedures (NTDs).

According to the court, NSE was not infringing copyright, acting wrongfully or carelessly by offering the Usenet services. NSE could not be obligated to check every message that was saved on its servers and passed on to others, as this would conflict with European regulations. Nor could NSE be obligated to maintain a NTD focused on synchronised messages, as this would still result in having to check every message NSE saves on its server. This does not mean that the appellate court thinks that no (extra) measure should be taken by NSE. What measure provides the best balance remains to be seen. Parties are allowed to reply in this regard later on in the procedure.

So once again a Dutch court has ruled that there is online copyright infringement, but the measures to counter it are wrong. In the previous case, this was due to ineffectiveness. In this case it is because of regulations, but the court does give room for parties to propose alternative solutions. This is a plus for BREIN. However, the ruling of the court shows once again that merely providing a service that is used for online piracy cannot be considered as acting wrongfully or as copyright infringement.

Michiel Rijsdijk is a partner at Arnold + Siedsma. He can be contacted at: mrijsdijk@arnold-siedsma.com

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