BREIN vs Ziggo & XS4All: A matter of principle?

These are interesting times for those interested or specialised in internet and law. Following the sensational verdict in the case between FTD and Eyeworks, already another potentially groundbreaking lawsuit is on the way.

Last Monday, June 28, the hearing for the interim proceedings between BREIN and internet access provider Ziggo took place at The Hague. Reason for the dispute is Ziggo’s refusal to follow Dutch anti-piracy fighter BREIN’s request to cease providing access to The Pirate Bay website. The Friday before the proceeding, access provider XS4All announced it joined in the fundamental dispute alongside Ziggo. Ever since the dispute started, claims are being made in the media that BREIN’s request is legally unfounded and undemocratic, that it would lead to censorship, curtailment of freedom of expression and that the entertainment industry should better lick its own wounds for holding on to old business models.

A matter of principle it certainly is. The internet is originally a medium that provides people around the world with a platform to freely and even anonymously express their thoughts and exchange information on a large scale and at high speed. Nobody can deny that a free internet is a great good and that privacy and freedom of expression through the internet should be well guarded. Yet BREIN’s claim is not so unfounded and dangerous as is claimed.

Disabling access to illegal information

For one thing, BREIN indeed has a legal basis. The access providers claim that they merely act as conduits and are not responsible for the information passed on by their users. That is determined by the so-called Safe Harbour regime of Article 12, Paragraph 1 of the European e-Commerce Directive. Surely Ziggo and XS4All comply with the therein-stated terms. That means Ziggo isn’t responsible for the information from its users, which in turn means that Ziggo isn’t responsible for the large-scale copyright infringements occurring on TPB.

However, that does not mean that a court can’t demand that access providers, regardless of liability for the information, take additional measures to stop or prevent further infringements taking place. That the court has the opportunity to do so, is explicitly defined in that same article 12, Paragraph 3. The capacity to order additional measures is explained in recital 45 of the e-Commerce Directive. It says that the system of Safe Harbour Provisions of the E-Commerce Directive does not affect " the possibility of injunctions of different kinds; (…) including the removal of illegal information or the disabling of access to it”. These e-Commerce Directive provisions are more or less literally implemented in Article 196c paragraph 1 and 5 of Book 6 of the Dutch Civil Code. Application of these articles is exactly what BREIN is asking for.

Tort

That Pirate Bay users uploading popular movies, music, television series and so on are infringing copyright, is not at dispute. Also, in October 2009 the Dutch court ruled that TPB commits a tort against BREIN by offering a platform that structurally enables users to infringe copyrights. Through The Pirate Bay all kinds of copyrighted content is distributed for free, without any form of compensating for the creative artists and industries that created these sought after works. Indeed, the only people who make money out of this are the owners of TPB by cashing in on the advertising revenues from to the millions of visitors attracted by the wealth of free content.

Evading the law

In the recent Dutch verdict, the judge ordered TPB to remove all torrents referring to copyrighted materials in the Netherlands, weighted with a hefty penalty. Rather than respond to the (reasonable) court order, as Mininova recently did, TPB refuses to obey the orders. The thus forfeited penalties are not paid and can’t be seized too, because TPB owners have concealed their property and have moved to the Seychelles and elsewhere. This ‘game’ is not any different in other countries where TPB is convicted.

Aside to this, TPB seems to have found yet another way to evade application of the law, by so-called ‘hosting hopping’. So far, all the hosting providers where TPB has hosted its website here in the Netherlands and abroad have been court ordered to no longer provide access to the TPB website. Following each sentence, TPB directly changes to a new befriended hosting provider, thereby forcing rights holders to start a new trial every time. And so the unlawful situation is maintained to this day.

One may wonder what is undemocratic in this case. Appealing to democratically approved legislation to obtain a court order to demand a provider ends an unlawful situation, or to avoid the same democratically approved legal rules and enrich yourself at the expense of creative people’s efforts?

Policeman

Now that TPB refuses to comply with the Dutch (or any countries) court’s ruling and the law can’t be applied through hosting providers, rights holders apparently see no other way than to turn to the access providers. Understandably, access providers are refusing to get caught in the middle between two parties in legal battle. Yet, this does not relieve them from their civil obligation to be cooperative in certain cases. That follows, amongst others, from article 12, paragraph 3 of the e-Commerce Directive.

Access providers should however only be obliged to block a website after a court order. And such an order should only be given in special cases. TPB could be one of those special cases where additional measures are demanded to put a stop to or prevent continuation of a continuing unlawful situation.

Censorship

Is a court order to block access to an illegal website with mostly illegal content ‘censorship’? Censorship is a government-imposed ban on certain thoughts or feelings, as defined in Article 7 of the Dutch Constitution. Aside to the question whether preventing the free download of ‘Toy Story 3’ equates to prohibiting dissident or undesirable ideas, a court order for Ziggo to block access to TPB website is no governmental measure. It is in fact a court order and contains no prohibition from the government. The Dutch Ministry of Defence prohibiting publication of the Srebrenica edition of a military magazine because that would be harmful to the army’s interest, that is censorship.

Innovate

On one point XS4All and Ziggo have a case though, but that will most likely not improve their chances in the courtroom. By entailing these actions, how justified they may be, the entertainment industry is not improving its popularity with the public. Numerous studies have shown that most downloaders are willing to pay for downloading content legally, if the industry would offer a legal alternative with equal opportunities as websites like TPB (instead the for free aspect, of course). But this new distribution method will lead to problems with the old-fashioned distribution windows and forces rights holders to develop new business models. So as long as the legal alternative is unsatisfactory, it is no surprise that the modern consumer turns to other, illegal alternatives out of mere convenience.

Still, that doesn’t mean that BREIN is fighting a false, unfounded or undemocratic, legal struggle. Although extreme caution must obviously be applied and we should be careful for the 'slippery slope', the claim that the case BREIN versus Ziggo and XS4All case is about censorship and the protection of the freedom of speech is a bit exaggerated. Above that, it should not be forgotten that access providers also benefit from maintaining the unlawful situation: those who download entertainment need large bandwidths and therefore an expensive internet subscription. XS4ALL joins the case for matters of principle, but will certainly also have its business interest in the back of its mind.