Dutch BREIN wins lawsuit against major European Usenet Provider

Last Thursday, the Dutch district court of Amsterdam ruled that commercial Usenet provider News-service Europe (NSE) must remove illegal content from its servers, because it publishes and distributes copyright protected content without consent from the right holders. If the NSE does not remove the illegal content within four weeks, it risks a penalty of 50,000 euro’s per day.

Dutch BREIN protects the rights of copyright holders in the entertainment industry and started legal proceedings against the NSE. NSE is the operator of a platform for Usenet services and presents itself as the largest European Usenet Provider. A Usenet Provider gives access to files (‘binaries’) stored in certain newsgroups on its servers containing movies, television series, music, games and e-books. A user gains access to these files by paying for the service. In order to upload or download files, the user should be registered to a Usenet provider like NSE, or any of its resellers that sell subscriptions to gain access to the files on the servers of NSE to consumers.

What’s interesting about this case is that the court finds that in this particular case not much is to be expected of NSE’s Notice & Take Down procedure. Why not? The court declares that by the time a right holder actually detects the illegal content and files a Notice & Take Down complaint, the damage has already been done. Apparently hiding behind a Notice & Takedown Policy will no longer save Usenet providers that mainly offer illegal content.

A last resort for NSE to keep on functioning could be to place a filter that monitors all binaries on unauthorized content. According to NSE it is however unfeasible to monitor 15 to 20 million messages on content per day. Moreover, the NSE declares there is no automated way to determine if a Usenet file is copyright protected and consent is granted for distribution.

BREIN already achieved successes in a similar procedure in the Netherlands regarding the FTD-case. Usenet community FTD was ordered to remove all references to copyright protected works. FTD did not distribute illegal files, but did act unlawfully by structurally and systematically exploiting an internet forum that facilitates and encourages illegal uploading of copyright protected material. Also in the Mininova-case the court ruled Mininova encouraged its users to make available and distribute unauthorized copyright protected material on its platform. Therefore, Mininova also acted unlawfully (based on tort), as it structurally facilitated copyright infringement.

You can read the ruling here.

Reference: IE-forum.nl