Although the Dutch government makes it difficult to warn persistent pirates, the Dutch anti-piracy organization BREIN is eager to do so. A bulk notice-forwarding technique was recently abandoned due to privacy concerns, and the problem has been at the center of numerous lawsuits. In a victory for BREIN, a court of appeals decided today that ISPs may be forced, in certain circumstances, to provide copyright warnings to online pirates.
The Dutch anti-piracy group BREIN has been fighting online piracy for almost 25 years with the support of Hollywood and other content businesses.
Since then, the non-profit organization has taken down thousands of pirate websites, including Mininova, a former torrent juggernaut, and many other well-known brands.
Brein has increased its emphasis on user deterrence in recent years. This has been accomplished in part by locating habitual pirates and issuing warning letters to them.
Though contacting alleged pirates in the Netherlands is more difficult than it sounds, this tactic can be useful. A local court of appeal recently decided that Internet service provider Ziggo is not required to send BREIN’s warning letters to customers whose accounts were used to transfer illegal content via BitTorrent.
BREIN decided not to challenge the decision in this instance. Instead, it was anticipating a court of appeals decision in a similar case that was delivered today.
A Ziggo subscriber is accused of making a collection of more than 200 e-books available to the public through an open directory. Ziggo declined to freely release the related account holder’s personal information, as BREIN had hoped the ISP would do.
The ISP is not obligated to comply with the request, the court determined in a case brought by BREIN last year. Linking the IP address to the subscriber’s information would be illegal without an authorization from the Dutch Data Protection Authority. Similarly, providing the information to BREIN would not be permitted.
BREIN promptly filed an appeal after being disappointed with the result. Today, the Arnhem-Leeuwarden Court of Appeal granted the anti-piracy group a victory as a result of their efforts.
Additionally, BREIN asked the court to rule that Ziggo must abide by its demands in future cases that are similar to this one. The motion was refused because each case in the future will need to be evaluated separately in order to consider the interests of both parties.
According to the Court of Appeal’s decision, Ziggo has five days to send the appropriate subscriber with BREIN’s warning notice. If this doesn’t stop the pirated eBook directory, Ziggo will have to give the anti-piracy group the personal information of the subscribers.
Ziggo was also mandated by the Court of Appeal to pay €14,385 toward the legal costs of the anti-piracy organization.
Although BREIN is happy that Ziggo must send its warning, the main objective was to find a simpler approach to contact pirates in the future. It will be “business as usual” for new cases, according to BREIN Director Tim Kuik in an interview with TorrentFreak.
Dutch courts must balance the rights to privacy against the interests of rightsholders when deciding whether to order ISPs to abide by disclosure requests.
Internet consumers will benefit from this careful approach, but BREIN considers it to be a big headache. Additionally, it runs counter to how same matters are handled elsewhere. ISPs must send copyright infringement letters to subscribers as required by law in the US and other nations, for instance.
It’s interesting to take into account that BREIN draws attention to a sentence in this week’s judgement that alludes to a previous ruling by the European Court of Justice. In the ‘Mircom’ case, Europe’s top court came to the conclusion that ISPs might be forced to provide the personal information of alleged BitTorrent pirates.
According to the EU court, it is not necessarily illegal to link subscriber information to IP addresses of putative non-criminal pirates.
To guarantee that everything is in compliance with local law, the court in the same judgment also highlighted that national courts must test each case to fairly balance the interests of all parties.
The Court of Appeal decision from today represents a minor win for BREIN overall. However, the conflict in Dutch piracy cases between rightsholder interests and privacy rights is clearly not finished.
To guarantee that everything is in compliance with local law, the court in the same judgment also highlighted that national courts must test each case to fairly balance the interests of all parties.
Alexis Boutilier is from Vancouver, British Columbia. She has a high interest in all things tech and loves to stay engaged on all the latest appliances and accessories.
