From pillar to post, enforcing copyright online in the Netherlands (BREIN vs Ziggo/XS4All)

Friday the Amsterdam District Court’s judge rejected Dutch intellectual property rights holder organization and anti-piracy fighter BREIN’s claim to impose on provider Ziggo a blockage of internet access to the illegal Pirate Bay website for all it’s subscribers. For The Netherlands, the blockage of an illegal website on access provider level would have been a new tool in the enforcement of copyright on the internet. The latter currently seems to be under heavy pressure, especially since The Pirate Bay, unlike Dutch Mininova earlier, refuses to comply with the Amsterdam judge's earlier order to cease its infringing activities.

The court rejected BREIN’s request on two grounds. Firstly, for invoking Article 26d of the Dutch Copyright Act (Auteurswet) and Article 15th of the Dutch Neighboring Rights Act (Wet Naburige rechten), the Amsterdam judge found it necessary yet insufficiently established that the vast majority of Ziggo subscribers are infringing BREIN members’ copyrights via TPB. Secondly, the judge found that an alternative, less restrictive solution is possible, namely starting individual civil procedures against Ziggo’s infringing subscribers.

Although from a legal perspective, appealing against individual users is certainly less invasive than a general blockade, we should take into consideration how effective and desirably legal action against thousands of individual infringers really is.

Identification of online infringers

The judge noted that, since BREIN already proved to be in the possession of the IP addresses of infringing Ziggo subscribers it should be able to obtain the for a summons necessary persona data from Ziggo, "something which Ziggo during the hearing also indicated to be prepared to in principle". However, to obtain from an access provider the personal data of an (alleged) infringer, simply sending in a list of IP address is (understandably) not enough under Dutch law. In short, BREIN will have to prove, in every individual case of infringement, that 1) an infringement is likely and 2) that the requested data without reasonable doubt is that of to the actual infringer (Amsterdam District Court 2006/08/24, BREIN vs. Providers).

However, obtaining the data to meet up with the above two requirements is, in regard of the current state of art in file sharing techniques, a job that requires specific technical skills. For instance, the time of infringement needs be determined very accurately, which becomes more and more complex, particularly because of the use of dynamic IP addresses. Keeping track of and storing IP addresses for this purpose may however violate the privacy of the individual file sharer concerned. In addition, because of the increasingly complex and (intentionally) more concealed and fragmented technique with which files are being exchanged, finding out what the IP address of an (original) uploader is, requires digital research skills that any regular artist or organization itself does not hold. BREIN obviously has limited capacity in this area as well, so this type of investigation tasks will have be outsourced to specialist detective agencies.

At the same time, actually applying the specialist techniques necessary to identify an online copyright infringer, previously led the Amsterdam Court of Appeal to dismiss the rights holders’ demand for identification, on the ground that the internet users’ privacy could be compromised. According to the judge, looking into a computers 'shared folder' - were BitTorrent content is at the same time downloaded and uploaded to – could possibly contain files that are not intended for sharing purposes, but for personal use instead, thereby violating certain provisions of the Dutch Data Protection Act (Wet bescherming persoonsgegevens). (Amsterdam Court of Appeal 2006/07/13, BREIN vs. providers).

And - last but not least - an IP address does not necessarily lead to an identifyable individual. There are many technical solutions available to hide ones digital tracks. Solutions especially the big offenders know their way around .

Massive lawsuits against individuals desirable?

The judge also does not agree with BREIN's statement that it is undesirable to litigate against individual offenders:

"That it would be inappropriate to litigate against individual subscribers, as Brain also stated, is an argument of a different kind and on BREIN’s own account. The problem with the choice made by BREIN is that part of the subscribers that are not infringing, are not given the chance to contradict the blockage in front of the court, which forms even more reason to start civil proceedings against individual subscribers."

However, suing individual infringers has significant drawbacks as well. How do you explain the average Dutch consumer that - due to a questionable interpretation of the private copy exception – downloading from an illegal source is not considered an infringement in the Netherlands, yet uploading is? Would the average Dutch consumer know that when downloading via a BitTorrent site like The Pirate Bay, this automatically means content can be uploaded too? As a result, the vast majority of Dutch adult internet users now downloading via BitTorrent networks will be very startled to find a legal summons on their doorstep on account of copyright infringement. Or perhaps because one of their children has unknowingly been downloading (and uploading) movies, music and games via BitTorrent.

Apart from the impact of being subject to a legal proceeding, copyright infringers will also have to reach in their pockets: in addition to damages as a result of the infringement, the costs for the legal procedure itself will also have to be compensated. Escapes like ‘Yeah but I didn’t know that I was doing anything wrong!' or 'I did not know that my son was downloading!' and 'Why doesn’t the court not deal with those illegal sites that are making money out of this scheme instead?’, will probably not get these individuals off the hook. Thus, contrary to the courts verdict, both individual downloaders and BREIN would indeed benefit from not being involved in individual civil proceedings.

The argument of the court that a blockage of the website denies users an adversarial hearing is of course extremely relevant. Yet the reality of the matter is that many users actually prefer not to be subject to any adversarial hearing or legal procedure at all and will instead prefer to  comply with any proposed financial settlement from the rights holders. This is actually precisely what is currently going wrong in America: a few thousand downloaders have received summons letters giving them the option of complying with a financial settlement or else civil proceedings on account of copyright infringement will start off. The vast majority have chosen the path of paying compensation.

On the other hand, American access providers are already complaining about the increased numbers of identification requests and demand a limit to be set. In addition, the significantly increased pressure on the U.S. courts as a result of the thousands of individual lawsuits against file sharers should not be overlooked as well. And these problems are only the result of enforcing the copyrights of a handful of American movies. 

Meanwhile BREIN has announced to appeal the interlocutory judgment and is even considering suing copyright infringing Ziggo subscribers before the appeal and procedure in first instance take off. Perhaps BREIN is hoping to show the courts that the proposed solution of litigating against individuals leads to an undesirable and unsustainable situation. Suing individual file sharers, while The Pirate Bay is happily continuing their illegal activities is not only extremely undesirable from consumers perspective, but is also like the Dutch saying ‘dweilen met de kraan open’, which would translate into ‘mopping with the tap running.

From pillar to post

The calls for adaptation of copyright to the demands and realities of the digital age on one hand and the demand for new business models on the other, are all justified. Innovation is necessary and should not be suppressed by strict interpretation and enforcement of copyrights. However, we cannot ignore that the current Dutch Copyright Act cannot be enforced effectively on the internet: Citizen and consumer organizations find it very undesirable to individually address file sharers (as do rights owners). Websites that are committing criminal offenses and unlawful acts by facilitating structural copyright infringement, can seemingly ignore imposed sentences without consequences and continue their illegal and criminal activities. At the same time blocking access to an illegal website at provider level is going too far, according to the same civilian and consumer organizations and access providers. Now that the judge has rejected BREIN‘s demand for a blockade of The Pirate Bay yesterday as well, and requested BREIN to start addressing individual file sharers, the ping pong game continues.

Blocking and filtering are technical instruments that should be applied with the utmost care, but at the same time, especially in special cases such as The Pirate Bay, offer as last resort a workable and effective solution to enforcing copyright on the internet. The gloomy conclusion at the moment is that the consumer will most likely be the victim of the courts ruling. By opposing a blockade of the Pirate Bay site, BREIN must fall back on old-fashioned consumer unfriendly and ineffective enforcement techniques. Perhaps a blockade of the Pirate Bay is not so crazy after all...