Internetforum FTD has to remove all links and redirects to copyright protected material on their webpage.  The District Court of Haarlem (The Netherlands) has ordered this on Feb. 9th in a lawsuit filed by Dutch digital rights movement Brein, against the Dutch Usenet newsgroup FTD.

FTD is a ‘members only’ newsgroup within the social network Usenet. Members of the FTD group inform each other on files that can be shared through other newsgroups on Usenet. This very recent court ruling in The Netherlands is interesting and important, as jurisprudence on filesharing is still quite limited. This is the first case where filesharing on platforms within a social network is addressed in a Dutch court, as far as I know. Also it is interesting to see that the court established that filesharing activities via this webpage are not per se infringing copyrights, but its activity does constitute a wrongful act against copyrightholders.

FTD is not publishing or offering copyrighted footage themselves, and in The Netherlands it is not contrary to copyright law for a website to show links to downloadable files that originate from an illegal source. A classical copyright complaint will not suffice to stop FTD, as,  along the lines  of the recent RapidShare cases in Germany, FTD is probably not infringing copyrights. However, it is understandable that the creative sector is appalled by this site, as the platform makes filesharing very easy and efficient while operating covertly as a “members only” space. FTD has over 400.000 members that create an excellent environment for targeted advertising. The Haarlem court decision seems to recognize this and adds an extra tool to the repertoire of the entertainment industry in their battle against illegal downloading.

The judge based this conclusion on a combination of factors in this case. Three of them are important: The court found that FTD not only facilitates downloading, but also promotes the uploading of illegal content. Furthermore, the court took into account that there is an active moderator on FTD, that – albeit very limitedly- checks the activity of new users. This makes FTD at least partly responsible for the content of the newsgroup, even if this element is actually generated by users. Lastly, there is damage to the copyright owners, because it is safe to assume that people that have downloaded files via a Usenet group will not go on to acquire the same footage again and pay for it. Eventually, this means lost revenues for the copyrightholder. The Haarlem court believes this all adds up to a wrongful act (Dutch: onrechtmatige daad) towards the entertainment sector, represented by Brein.

This case shows that filesharing platforms can be held accountable for spoiling the income of copyright owners that is caused by illegal downloading through services that are promoted on their website, even though the platform does not offer such downloads themselves. Obviously this is a very succesful outcome for the Brein foundation. Should FTD file an appeal to this decision in the next few weeks, it will be of vital importance to them that the Haarlem court decision is overruled. If not, I guess we can expect many claims for damages in The Netherlands. This story is certainly to be continued…

Sources: De Volkskrant,   District Court of Haarlem.

For more background info on the legal questions in this case, click here