In a case between Dutch antipiracy group BREIN and hosting provider XS Networks the District Court of The Hague ruled that a hosting provider can be held liable for damages as a result of their refusal to take down a file sharing website upon rights holder request.

The dispute between Brein and XS Networks centers around filesharing platform SumoTorrents and dates back to 2008. BREIN send summations to XSNetworks, requesting them to end the copyright infringing activities of SumoTorrents by taking offline their website and requesting to hand over all data identifying the administrators, which XS Networks both refused. In January, Brein decided to get a court order to force XS Networks to comply with their demands. Probably a novice in Dutch copyright infringement case law, BREIN also claimed damages for the period XSNetworks was informed about but refused to act against the copyright infringing activities on their servers. 

Yesterday, the court ruled in favour of Brein. The amount of the damages has yet to be determined. In addition XS Networks risks a €10.000,- penalty for each day the personal information necessary to identify the administrators of SumoTorrents is not handed to Brein. Although XS Networks no longer hosts SumoTorrents and can therefore not be ordered to take the website offline, the court did forbid XS Networks to ever host SumoTorrents again.

According to the ruling, XS Networks acts unlawfully against Brein by not immediately turning over the requested data and taking the website offline. The court was of the opinion that, since SumoTorrents uses the BitTorrent protocol to make file sharing possible, a downloader automatically uploads the infringing materials back into the network, making the website manifestly unlawful under Dutch law. If so, following the national implementation of article 14 of the E-Commerce Directive, XS Networks either knew, or should have known about the infringing activities on SumoTorrents. As a result, SumoTorrents should have complied with Brein’s requests, since such knowledge makes an appeal on the hosting provider liability exemption impossible. 

According to current Dutch rules, downloading from an illegal source is allowed under the home-copying exemption. Uploading infringing content however isn't. The Dutch Supreme Court has recently asked preliminary questions to learn if the home-copying exemption also covers illegal downloads. 

The Brein/XS Networks ruling is interesting, since the court ‘deems’ SumoTorrent to be unlawful; in previous cases resulting in website blocking, a separate court order to declare a website unlawful was issued beforehand. The current ruling could be the start of a new line of jurisprudence. How much influence this ruling will have on future cases against hosting providers remains to be seen, as XS Networks still has the opportunity to appeal the ruling. 

Meanwhile, Future of Copyright will keep you informed. To read more about related issues, please click on the links below: 

• Preliminary questions to the ECJ from the Dutch Supreme Court on illegal downloading under the Home Copy Regime
• Anti piracy group BREIN intensifies their fight against illegal filesharing
• New research on filesharing in the Netherlands ignites debate on anti-piracy measures

Sources: Tweakers.net, Brein 

Written by: Nathalie Falot