Analysis of the Eyeworks vs. FTD case

All copyright-loving legal experts in the Netherlands have an opinion on the recent verdict of judge Hensen in the case between Eyeworks and FTD of June 2nd. The verdict differs significantly from previous case law on the qualification of certain acts of internet intermediaries and as such can have major consequences for the enforcement of copyright in the current internet era.

Exchange of copyrighted material via internet platforms

Nowadays copyrighted works like movies, music, games and television are exchanged widely amongst internet users. In this exchange, Peer to Peer (P2P) sites like Napster, BitTorrent sites like The Pirate Bay and Mininova, and now also Usenet sites like FTD play a key role. It is not so much that visitors download the copyright-protected material directly from the servers of these websites without permission of the creators, but rather that these sites offer a sea of hyperlinks to locations elsewhere on the internet where that copyright protected material can be downloaded directly from the computers of one or more users.

Within  Dutch and European copyright it is prohibited to make works 'available to the public' without permission of theirs creator. This means that if one offers a movie or CD online at a website like The Pirate Bay, without the consent of the rightsholder, they commit copyright infringement. However, the entertainment industry is not so much interested in pursuing individual distributors of copyrighted works, but rather to put a stop to intermediaries who make large sums of money by making scattered copyright infringing material offered by individuals, easy to find and download.

Meanwhile, technology has advanced to the level that by clicking on a BitTorrent link on a site like Mininova, the desired material is downloaded to the requestors computer at once and fully automated, even though the material itself still comes from different locations elsewhere on the web. Nowadays it seems as if the material is directly downloaded from the intermediary sites, while the technique works in the background. This complicates the question of whether such sites offer the  copyrighted material online themselves or still only work as search engines to find (infringing) material elsewhere.

Legal Qualifications

The big debate is therefore whether or not holders of these intermediary websites make copyrighted materials directly available to the public themselves, in others words independently and directly infringe copyrights. When (direct) copyright infringement is the case, a special enforcement procedure comes available: a judge can, without adversarial (!), give an order for an ex-parte injunction, allowing the immediate termination of the infringing activity.

Until now, Dutch courts judged that website platforms designed primarily to offer links to copyright infringing materials, do not make these works (directly) available to the public in regard of the Dutch Copyright Act (Auteurswet). Nevertheless, these sites still act illegally by structurally facilitating large-scale copyright infringement and as a result, gain financial benefit. Such action is not so much in conflict with copyright laws, as it is in conflict with the care that everyone is obliged to handle with in a civil society (social care duty). In other words, offering this kind of platform is a tort. In determining whether or not this is the case, the court can take into account all the circumstances of the occurring case, such as the layout of a website, the technical process, the business model, cooperation with takedown requests from rightsholders and so on.

Mininova

In that regard, for example in the Mininova-case, the court held that the owners if the BitTorrnent platform encouraged users to upload links to copyrighted material, offered categories to make certain material easier to find and through its administrators and moderators ensured that the provided links were indeed useful. By arranging its platform in this way, Mininova acted unlawfully, that is contrary to its ‘social care duty', by facilitating structural copyright infringement. In other words in this particular case Mininova did not so much commit direct copyright infringement, but instead acted  contrary to ‘social care duties’ and therefore commited a tort.

Eyeworks vs. FTD

However, in the aforementioned case of Eyeworks (rightsholder of the movie ‘Komt een vrouw bij de dokter’, international title ‘Stricken’) against FTD (a Uset provider of a platform), the judge ruled, contrary to the line marked in previous case law that FTD makes copyrighted works available to the public, thus directly and independently infringing the copyright of Eyeworks. This judgement asserted the legality of the earlier delivered and executed ex-parte injunction. In the judgement the court strangely even makes a comparison with the Mininova case:

"4.9. The Utrecht District Court found on 26 August 2009 in a case between Stichting Brein and Mininova BV that the acts of Mininova disputed in said proceedings must qualify as a tort and not as copyright infringement. The court found relevant in that respect that Mininova was not directly involved in the up and down loading of the copyrighted works and so did not own such works at any time. The acts of Mininova are similar to some extent with the ones of FTD. It results from the above that the Preliminary Relief Judge in this case qualifies the acts of FTD, provisionally judging, as making copyrighted material available without consent."

Comparison with other intermediaries

In an article on Webwereld Hans Bousie and Christiaan Alberdingk Thijm, two lawyers specializing in copyright law, fiercely criticize the opinion of Judge Hensen. Both believe that this "shocking" and "unsustainable" verdict stretched the notion of ‘making available to the public’ too far. In relation to previous case law, this reaction is understandable. Both lawyers draw comparisons with other intermediaries that facilitate the disclosure of works, such as Xerox, JVC and iTunes. Alberdingk Thijm states: "My iTunes program also plays a key role in obtaining music and playlists. That such a facilitative role is a tort in regard of copyright infringement, I can understand. But that doing so means copyright infringement, is a whole different story. Then you take a note to the judge and ex-parte take Apple out of business."

The example of the ex-parte iTunes is not entirely fair though. Legally, it would be possible, but in practice a legal, cooperative exchange service like iTunes, where illegal content can  perhaps be found occasionally, won’t be tackled with a method as an stringent as an ex-parte. Let alone that a judge will assign an ex-parte under such circumstances.

Unnecessary

The FTD ruling stretches the copyright concept of 'making available to the public' so far, that right now, websites structurally enabling the exchange of copyright infringement, independently and direct infringe these copyrights themselves. This elongation is not necessary to deal with parties like FTD though, as structurally facilitating copyright infringement is already illegal according to duties of ‘social care’ and tort law. However, this elongation, viewed in the light of the increasingly fierce battle between pirates and the BREIN-like rights holders organisations of this world, is perhaps not so very remarkable...

Appeal

FTD just announced to Tweakers that it will appeal against the June 2 verdict. Based on the above, there is a high probability that the verdict will ultimately be destroyed. Nevertheless, even in appeal the service of FTD will (in all probabilty) be ruled as unlawful. Not so much for (directly) infringing copyright, but instead because it is operating contrary to it's social care duty, not to structurally facilitate others commiting copyright infringement.