In 2010, Dutch anti-piracy group BREIN went to court to try and force Ziggo, the largest ISP in the Netherlands, to implement a DNS and IP address block of The Pirate Bay.

To help avoid a damaging legal precedent, Ziggo was joined in the case by rival ISP XS4ALL. Initially the partnership was successful. The Court of The Hague decided that blocking all customer access to The Pirate Bay was a step too far. BREIN, refusing to give in, launched a full trial.

During November last year that case was heard before the Court of The Hague. BREIN argued that it would be trivial for the ISPs to initiate a block of The Pirate Bay, while the ISPs stated that doing so could compromise the security of their networks, threaten freedom of expression, and would ultimately prove ineffective.

BREIN countered by insisting they have rights too – copyrights – and that the reason the ISPs don’t want to block TPB is because they profit by selling bandwidth to users so they can access it.

Today, the Court of the Hague delivered its verdict – and it’s victory for BREIN.

The Court noted that approximately 30% of Ziggo subscribers and 4.5% of XS4ALL subscribers use The Pirate Bay to share unauthorized media. Downloading copyright material is currently legal in the Netherlands but uploading is not, so due to the two-way nature of BitTorrent it is deemed that those customers are infringing copyright.

While the Court noted that an ISP blockade against The Pirate Bay would also prevent subscribers with legitimate business from accessing the site, it said that the legal offerings available there are not only limited, but also available from other sites. Preventing a large number of copyright infringements trumps the availability of a more limited supply of legal content, the Court noted.

Furthermore, the Court concluded that in granting an injunction to block The Pirate Bay it would only be preventing access to a site already subject to a court order which forced its operators to block access to Internet users in the Netherlands. That order was previously issued by the Amsterdam Court but was ignored by the site’s operators.

Spokesperson for XS4ALL, Niels Huijbregts, said the company is “bitterly disappointed” by the decision, noting that fundamental rights had been traded for “commercial interests”.

The ISPs have ten days in which to initiate the blockade – failure to do so will result in fines of 10,000 euros per day.

Source: Dutch ISPs Ordered To Block The Pirate Bay

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Founded in 2001, FTD is The Netherlands’ largest Usenet community with around 500,000 members. FTD and its associated software allows its members to ‘spot’ the location of material they find on Usenet, which could include the locations of copyrighted movies, music and TV shows.

Two years ago, FTD turned the tables on Dutch anti-piracy BREIN by taking the outfit to court. FTD asked the court to declare that it operates within the boundaries of Dutch law, and further requested BREIN to retract an earlier statement that the Usenet portal operated illegally. Today the court announced its verdict, a negative one for the popular Usenet portal.

Although FTD doesn’t host or even link to any copyrighted material, the Haarlem Court ruled that the portal does provide a promotional venue for uploaders of infringing material, as they can post a description of the locations (so called spots) where these files can be downloaded.

In the verdict the court further confirmed that FTD itself isn’t breaking any copyrights, that FTD users aren’t necessarily breaking any laws either and that spotting itself is not illegal. However, the fact that uploaders of unauthorized content can ‘spot’ files is enough to deem the whole system to be illegal.

“FTD ‘contributed’ to the uploading of materials to Usenet by giving [uploaders] a platform to announce their evil deed. While only 13 of the 500,000 FTD users were identified as uploaders, the court said that that was enough. FTD is facilitating and stimulating the illegal uploading (posting) of material to Usenet and therefore committing a tort,” FTD’s legal counsel Arnoud Engelfriet informed TorrentFreak.

FTD was ordered to remove so-called spots of copyrighted files within a month. In the event that FTD fails to comply with this order they will have to pay BREIN 15,000 euros per day up to a maximum of 300,000 euros ($410,000).

BREIN welcomed the decision of the Haarlem Court, which also states that the anti-piracy outfit doesn’t have to retract an earlier statement in the Dutch press where it labeled FTD as a criminal organization.

“The principle that you are not allowed to structurally make use of illegal files with your website or service applies not only to Internet but also to Usenet,” said BREIN director Tim Kuik in a comment. “BREIN will also hold liable any other websites and services that do the same regardless of the technical protocol they use for their illegal business model.”

Today’s verdict follows an earlier court decision against the Usenet portal. November last year FTD was found guilty of promoting the illegal uploading of a Dutch movie in a separate case. Whether FTD will appeal, and what the verdict means for the continuation of FTD (and possibly all file-sharing portals) will become clear in the near future.

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The MPAA and their colleagues in The Netherlands appear to have shut down more than two dozen BitTorrent, Usenet and other file-sharing sites today. Accused of linking to movies, music, TV shows and games, at least one domain appears to be redirecting to the website of Dutch anti-piracy outfit, BREIN.

In an operation carried out by the MPAA and Dutch anti-piracy outfit BREIN, 29 BitTorrent and Usenet indexing sites are believed to have been closed down.

The names of the sites, which appear to have been offering links to movies, music, TV shows, games and books, are currently unavailable but at least one appears to be identified as HD-UNiT3D.

As can be seen from its http://hd-united.com/ URL, it diverts straight to BREIN’s homepage.

Despite being hosted in the US the anti-piracy outfit cited Dutch law as the reason for the closures. “They are directed at the Dutch public” and “unlawful under Dutch law,” Kuik told TorrentFreak.

“This year we have made over 600 of these sites inaccessible. Some seek refuge in a foreign hosting provider. These 29 apparently thought that in America they could go undisturbed. That is incorrect,” Kuik said.

“Through cooperation with our foreign colleagues we can make sites in other countries inaccessible,” he added.

BREIN says it will also seek out the personal details of the those who operate the sites in order to hold them personally liable.

As mentioned in our earlier articles, BREIN has indeed closed down many torrent and Usenet related sites. However, while some of them have been reasonably sized, most of them are particularly small and easy to close by pressuring their hosts.

The fact that none of the owners or users of the sites have alerted us about these alleged closures suggests that no sizable sites were included.

The MPAA are yet to make a statement on the action and as yet BREIN haven’t formally identified any of the sites targeted. If past actions are anything to go by, they will try to avoid naming them for fear of giving them even more publicity.

That HD-UNiT3D is redirecting to BREIN’s homepage is both worrying and suspicious. Previously, BREIN simply asked the hosting providers to take the sites down or face the legal consequences. This is the first time that they appear to have gained some level of control over a domain, an action that is usually only taken by the authorities and not a private anti-piracy group. Whether this is the result of old-fashioned pressure or something else will remain to be seen.

We will update this post as more information becomes available.

Article from: TorrentFreak.

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The long-running battle between anti-piracy group BREIN and a Usenet community reached a Dutch court room this week. For their part, the FTD newsgroup portal wants the courts to issue a declaration that they operate legally. On the other hand, BREIN insists that publishing the locations of copyright material is illegal and tantamount to directly publishing it. On that basis BREIN is demanding a permanent injunction against FTD’s operations.

In the Court of Haarlem on Monday, Dutch anti-piracy group BREIN met with the operators of Usenet community FTD for the hearing of their long-standing copyright dispute.

According to BREIN, FTD is a service which allows users to easily but illegally download movies, TV shows and music. FTD see themselves differently and state that they only allow their members to point out where such content might be found on Usenet.

A statement sent to TorrentFreak by FTD lawyer Arnoud Engelfriet of Ictrecht law firm noted that the four hour long hearing took place in the largest court room available but generated enough interest to still become crowded.

Lawyer Gijsbert Brunt began by outlining how FTD operates. He argued that FTD allows users to report or ‘spot’ where material may be found on Usenet, but does nothing more than this, adding that FTD does not upload any content to users, nor does it offer users any downloads.

Brunt further argued that FTD’s service is not even necessary to download content from Usenet and is not, as BREIN claims, an “entertainment shopping” service from where movies can be downloaded.

As part of their argument, BREIN referred to an earlier legal battle between FTD and the movie studio, Eyeworks.

In that case, a court ruled that by allowing the publication of ‘spots’ detailing the location of an unauthorized movie stored on Usenet, FTD effectively became the publisher of that movie as if they had actually hosted it on their own servers.

“The court in The Hague already determined that FTD provided access to unauthorized copies of a Dutch movie,” BREIN chief Tim Kuik told TorrentFreak in a statement.

“FTD is like a downloadshop providing access keys to unauthorized content. Therefore BREIN agrees with the court in The Hague that deemed FTD is making available without permission of the right holder and therefore directly infringing copyright itself even though the content itself is stored and downloaded from Usenet.”

Coincidentally, the appeal of that particular decision will be heard this week in The Hague. Needless to say, the outcome could prove of particular relevance to this case.

BREIN argued in court Monday that FTD is a portal which “organizes and promotes” illicit content making it easy for users to download it from Usenet. The anti-piracy group said that this “unlocking” of newsgroup content by FTD amounts to them publishing it and asked the judge to consider that in the light of the Eyeworks ruling, not only is FTD illegal but also a direct infringer of copyright.

Even if the Court does not eventually consider FTD to be a direct infringer, BREIN says that FTD still acts in a similar manner to other sites who have previously lost lawsuits in The Netherlands including Zoekmp3, ShareConnector, Mininova and The Pirate Bay. The anti-piracy group argued that all of these sites illegally used the availability of copyright content as a business model.

“In previous cases courts ruled that comparable business models were acting unlawful without saying the activity amounted to direct infringement,” Kuik told us yesterday.

“The point is that such business models structurally make use of the availability of unauthorized content. Even if it is not deemed infringement itself, it still is unlawful,” he added.

In an apparent reference to the earlier “filtering” rulings handed down against both Mininova and The Pirate Bay, BREIN argued in court that FTD should also have to check (filter/moderate) the potential copyright status of material before allowing the publication of their Usenet locations.

BREIN said that moderation of ‘spots’ does take place on the FTD service, but only on quality grounds, never due to copyright concerns.

Countering, FTD insist that since it is legal to download copyrighted material in The Netherlands, they have no duty to remove such ‘spots’. BREIN, however, see things differently and believe that commercial use of illicit material constitutes an infringement of copyright.

Lawyer Gijsbert Brunt reiterated that FTD is not responsible for the material uploaded to, or downloaded from, Usenet.

The Court’s decision is due to be handed down on or soon after 7th November 2010.

Article from: TorrentFreak.

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A Dutch court has ruled that two of the largest ISPs in the Netherlands don’t have block customer access to The Pirate Bay. According to the court, there is no evidence that the majority of the ISPs‘ users are infringing copyright through The Pirate Bay, so a block would not be justified.

Dutch anti-piracy outfit BREIN has been successful in court against the alleged operators of The Pirate Bay, but despite several court orders the site is still accessible to the public.

Because the operators of the site fail to take the site offline in The Netherlands, BREIN has extended its focus to Internet providers. This tactic has been pioneered successfully in both Italy and Denmark, but today The Hague’s Court decided that The Pirate Bay wont be blocked in The Netherlands.

BREIN wanted the largest ISP in The Netherlands, Ziggo, to implement a DNS and IP address block of The Pirate Bay, with any future domain names and IP addresses of the site to be blocked within 24 hours of notification by BREIN. The Court, however, argued that blocking all customer access to The Pirate Bay goes too far.

The Court ruled that there is no evidence that the majority of the customers are using The Pirate Bay to infringe copyright. If BREIN wants to stop the actions of individual customers it has to go after them separately. Blocking the entire Pirate Bay site is unjustified in this case, the Court concluded.

BREIN initially started a case against the ISP Ziggo, but rival XS4ALL joined to avoid a legal precedent which could have negative implications for the basic principles of the Internet. The company argued that if the case was lost, the ruling could have far-reaching consequences for both ISPs and Internet users.

With the present verdict the tide seems to be turning in Europe. In recent years both Italian and Danish providers were ordered to censor The Pirate Bay. However, in the last two weeks courts have ruled in favor of the ISPs in Belgium and The Netherlands.

Two weeks ago, BREIN’s counterpart in Belgium lost its case where it requested local ISPs to restrict user access to The Pirate Bay. A judge at the Antwerp Commercial Court rejected the blocking demands and labeled them “disproportionate”, similar to today’s verdict in The Netherlands.

Despite having lost this preliminary case, BREIN is expected to go ahead with a full trial against Ziggo. The anti-piracy outfit sees an ISP block as the only option left to stop The Pirate Bay. The verdicts they won against the site’s operators aren’t worth much since ‘the world’s most resilient torrent site’ is still very much alive in The Netherlands.

BREIN chief Tim Kuik was approached for comment but did not immediately respond.

Article from: TorrentFreak.

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Earlier this year, TorrentFreak exclusively revealed that in yet another attempt to cause damage to The Pirate Bay, Dutch anti-piracy group BREIN had begun threatening an ISP.

Ziggo is the largest cable Internet provider in The Netherlands and in 2009 generated nearly 1.3 billion euros in revenue from 7.2 million Internet, TV and telephone customers. In April BREIN demanded that it stop providing customer access to The Pirate Bay via a DNS and IP address block.

Non-compliance would result in legal action under Article 6:162 of the Dutch Civil Code. Ziggo, however, refused to comply.

“There is no legal basis for this request,” said the company in an announcement. “We are just a conduit. We provide people access to the Internet and have nothing to do with that website. Moreover, we favor public Internet.”

Now it appears that Ziggo is receiving support in its fight from one of its competitors. ISP XS4ALL will join its rival in fighting the proceedings brought by BREIN.

XS4ALL says that it is against censorship and is intervening in the hope that they can help avoid a legal precedent which could have negative implications for the basic principles of the Internet. The company argues that if the case was lost, the ruling could have far-reaching consequences for both ISPs and Internet users.

While ISPs can be held responsible for material held on their own servers, generally they cannot be held responsible for the content of traffic generated by others.

“The basic principle of the Internet is that ISPs pass on traffic to their customers unfiltered, they are merely a gateway,” says Niels Huijbregts, spokesman for XS4ALL. “The Pirate Bay website is not hosted on a Ziggo server, so Ziggo can’t be held responsible for restricting access to the website. BREIN is targeting the wrong people.”

Tim Kuik, the boss of BREIN, sees things quite differently.

“This is not about censorship but about the basic principles of law which we live by,” he explained. “Democracy only works if we follow the rules, something the illegal Pirate Bay fundamentally does not. The law also states that there is no right of access to illegal websites. That is something that Ziggo and XS4ALL have overlooked.”

Christiaan Alberdingk, XS4ALL’s lawyer and partner at SOLV law firm is clear on what the ISPs are trying to avoid when the case goes to court in The Hague on June 28.

“When we start shutting down sites foreign sites in The Netherlands, that is a disproportionate restriction on our freedom to gather information. That does not fit into a democratic country like ours.”

Article from: TorrentFreak.

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