Dutch Court Says That Copyright Owners Are Better Off When People Are Downloading From Unauthorized Sources

from the say-that-again dept

Wed, Nov 24th 2010 4:38am — Mike Masnick

Here's a bit of a surprise. According to this report, beyond just the FTD ruling we wrote about last week, there was another copyright case decision in the Dutch appeals court of The Hague, which stated that "since downloading from illegal sources for private use was permitted under Dutch law," it's actually to the advantage of copyright owners that such sites exist.

Of course, part of the reasoning for this is that there's a private copying levy, and the court was arguing that unauthorized downloads should be taken into account when calculating that levy. So, this could mean higher subsidies and "you must be a criminal" taxes in the Netherlands. Still, the argument is somewhat striking:

With reference to statements made by the Minister of Justice, the Court argued that the legitimate interest of the right holders is more adequately protected in a regime that allows downloading from illegal sources. In view of the Dutch government's statements, such a levy system better ensures that compensation is due to right holders for the use of their work.

I'm not convinced that's actually true, but it's still quite surprising to hear a court say it like that. I would imagine entertainment industry lobbyists are banging down Dutch doors right now...

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Filed Under: copyright, hague, levies, netherlands, unauthorized sources

21 Comments

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Yogi, 24 Nov 2010 @ 5:05am

WAR!!
I guess this means war, doesn't it? Basically this amounts to a declaration of war on the US economy, or at least on the only part of it that really matters - the copyright sector.

Can't wait to conquer the red light district...
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out_of_the_blue, 24 Nov 2010 @ 5:14am

For US, a levy and "illegal" aren't mutually exclusive.
So simply argues *for* a levy TOO, and justifies increases.
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Anonymous Coward, 24 Nov 2010 @ 5:33am

Bono is about to go supernova LoL
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James Carmichael (profile), 24 Nov 2010 @ 5:55am

Common Sense
Wow, common sense in the courts... although that 'you must be a criminal' tax is NOT a fair way to go about it.
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JeroenW, 24 Nov 2010 @ 6:03am

oversimplified
Actually the reasoning behind the verdict was: - it's impossible to enforce a ban on downloading - if downloading is banned the levy on blank DVDs would need to disappear - no levy on blank media means less income for copyright owners. The fact that the body responsible for administring and distributing that levy has been under fire for mismanagement and failure to do what they are supposed to be doing is an interesting sidenote. More interesting is that consumer rights groups and an artists union have spoken out against a ban on downloading today: http://translate.google.com/translate?hl=en&sl=nl&tl=en&u=http%3A%2F%2Ftweakers.net%2F nieuws%2F70953%2Fartiestenbonden-en-consumentenbond-willen-geen-downloadverbod.html
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Anonymous Coward, 24 Nov 2010 @ 6:56am

Finally a sensible solution. As to the "you must be a criminal" taxes. Well you are. You are breaking the law. Granted, it's a stupid law and needs to be fixed like a feral cat, but it is a law. I have said for ages just charge me a monthly download fee, make it reasonable and then let ASCAP, BMI, SESAC do what they do. They collect the fees. If the fees are too much then people won't pay and will find another way. Let the market decide. Free market, what a concept.
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Bas Grasmayer (profile), 24 Nov 2010 @ 7:07am

"As to the "you must be a criminal" taxes. Well you are. You are breaking the law."

No I am not. If I have never downloaded anything from illegal sources at any point in my life, it wouldn't be fair to tax the storage devices I'm going to buy.

Anyway, personally I don't think the tax is that unfair. It's a reasonable part of a bigger solution. The government is always going to subsidize stuff that you will never need or make use of, but the tax and subsidies exist so that society as a whole can profit from it.

However, when it comes to this tax, I do not think the music industry deserves it, since they have failed to provide a good amount of reasonable alternatives in the last years and basically have failed to innovate.

So pay-outs of this money should be frozen, until they do. Or should only be given out after guarantees have been given that the money will be used to develop better alternatives within a certain time-frame.
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Hephaestus (profile), 24 Nov 2010 @ 7:15am

Re:
Naw thats just CERN (The Large Hadron Collider) blowing a gasket ...
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Hephaestus (profile), 24 Nov 2010 @ 7:23am

Re:
"Anyway, personally I don't think the tax is that unfair. It's a reasonable part of a bigger solution. The government is always going to subsidize stuff that you will never need or make use of, but the tax and subsidies exist so that society as a whole can profit from it."

I am guessing you live in europe. How does a taxing society and giving the money to a group of individuals who never pay the artists benifit society?

"So pay-outs of this money should be frozen, until they do. Or should only be given out after guarantees have been given that the money will be used to develop better alternatives within a certain time-frame."

In all actuallity this "you are a thief" tax is going to be removed with in the next year or two through out europe. Part of it was already struck down and the rest is going to be.
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Anonymous Coward, 24 Nov 2010 @ 8:19am

Actually - here in the Netherlands, downloading, whether from a legal or an illegal site, isn't against the law. That's very much legal. It's the uploading that could be illegal, if you don't have the right to do that.

Given that most people download via a P2P service/program that requires or automagically uploads as well as downloads, this might be a difference that makes no difference, but just downloading itself is a legal activity.

Please stop assuming - especially in an article about a non-US based story - that the US system you know and (maybe) love also transfers over! It probably won't....
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Bas Grasmayer (profile), 24 Nov 2010 @ 8:52am

Re: Re:
"I am guessing you live in europe. How does a taxing society and giving the money to a group of individuals who never pay the artists benifit society?"

That's why it should be frozen.

However, I also think copyright should be heavily reformed, as well as the horrible licensing systems.
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Paul Hobbs (profile), 24 Nov 2010 @ 9:04am

Why can't this idea work?
Years ago I read an article in The Register which presented one possible approach to dealing with downloading/file sharing/copyright, and making sure that rights holders/artists got paid. It was based on the work of Professor Terry Fisher who is the Hale and Dorr Professor of Intellectual Property Law at Harvard Law School. The article can be found here.

At the core of the article, and Professor Fisher's work, is an alternative method of paying for content:

"But what if it fell entirely on broadband users? Some might find the figure surprising: excluding all of the other penny taxes we've just mentioned, the cost will be $6 per broadband user per month. Um, is that all? Well, actually, yes it is."

The article is nearly 7 years old now, so maybe it is not even relevant any more, although IMHO it is still very relevant. I am no expert in law or economics (which basically means I don't know if Professor Fisher's ideas would even work), but I can confidently say this: If for $6 a month, on top of my current broadband fee ($69 a month, ADSL2+, 200GB quota), I was able to download/share any content I wanted (without limits) - be it music, tv shows, movies, pictures, etc - I would leap that the chance.
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Bengie, 24 Nov 2010 @ 9:23am

Braaaaiinnsss
The act of watching a movie make an illegal copy in your brain. Brains are computers to.

Ignoring this is just cherry picking your fights.
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BigKeithO (profile), 24 Nov 2010 @ 9:46am

Re: Why can't this idea work?
Agreed. $6/mo is less than Netflix and you'd have access to more than their crappy streaming catalog of movies. Give me a service I can sign up for and opt out of that puts me on the legal side of the law for $6/mo? I'd be all over that deal.
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Anonymous Coward, 24 Nov 2010 @ 10:07am

Re: Why can't this idea work?
Sign me up for $6 a month!
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Mike Masnick (profile), 24 Nov 2010 @ 11:33am

Re: Why can't this idea work?
Years ago I read an article in The Register which presented one possible approach to dealing with downloading/file sharing/copyright, and making sure that rights holders/artists got paid. It was based on the work of Professor Terry Fisher who is the Hale and Dorr Professor of Intellectual Property Law at Harvard Law School. The article can be found here.

I believe there are all sorts of problems with Fisher's idea. I know the EFF has endorsed it, but I think it greatly oversimplifies the issue, and only serves to create a new -- inefficient -- bureaucracy in the middle:

http://www.techdirt.com/articles/20081209/0144083060.shtml

Figuring out who gets paid for what is a big problem. And some of that money goes into managing all of it. It's a solution that creates new middlemen to pay, rather than letting the market sort stuff out.
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Bas Grasmayer (profile), 24 Nov 2010 @ 12:48pm

Re: oversimplified
Here's an English version of the same article: http://torrentfreak.com/dutch-artist-unions-call-government-to-legalize-file-sharing-101124/

Or at least Torrentfreak's interpretation of it.
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Bas Grasmayer (profile), 24 Nov 2010 @ 12:51pm

Re: Re: Why can't this idea work?
True, but at least then users/filesharers won't be criminals anymore.

They could of course use the money to create the biggest, fastest, best music database that has ever existed, so that people will use that instead of filesharing networks, and then it will be much easier to track who gets what piece of the pie.

They should have done that years ago, instead of letting the negotiations with Napster fail and then suing them into bankruptcy.
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Anonymous Coward, 24 Nov 2010 @ 3:39pm

Re: Braaaaiinnsss
I always thought of the same thing. By remembering a movie, you are infringing in their copyright. And by telling other people about it you are distributing copyrighted material. You will be sent a "cease and desist using your memory" letter. Then they will scan your brain for any traces of their "property"
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Rita van Buren, 24 Nov 2010 @ 4:04pm

Re: Why can't this idea work?
69 dollars and a lousy 200 GB limit?

Here in the Netherlands I pay 20 Euros a month unlmited for blazing fast ADSL. 10 Euros unlmited for cellphone 3G.

You must live in the Useless Snakes.

I have been using Bittorrent for years. Never a problem. Have every tune ever made since late 40's and haven't been in a theater for years.

I feel no guilt whatsover. and in fact proud that I can be screwing some KIKE Hollywood movie company out of profits.
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Paul Hobbs (profile), 24 Nov 2010 @ 5:45pm

Re: Re: Why can't this idea work?
Seems to me that there are two separate (although probably related) issues here:

1. A somewhat philosophical question about who should pay for content and who should be paid. You write a lot about the economics associated with infinite resources, etc, and to the extent that I understand it, I agree with you. Give away the infinite stuff, charge for the scarce stuff. And while there are lots of good examples out there of that working (and I am even trying to apply it in my own business), it doesn't seem to be an approach which has gripped the public's attention. The average "man on the street" would still be of the view that artists should "get paid for what they create", and that the music (or whatever) is the thing which is being paid for.

2. A logistical question about how do people pay for content and how do the payees get paid (whoever they might be). Perhaps it is naive to think that all the stakeholders could agree on a single payment collection and distribution mechanism, but assuming they did all agree, I don't see why it has to be inefficient or bureaucratic.

The big reason I like the idea - as a consumer - is that it's a single (monthly) transaction, one-stop-shop solution. It applies to any content, regardless of format; it doesn't place any restrictions on sharing or copying or redistribution. And as a consumer who genuinely wants to see creators get paid for their creations, I feel "good" about it. It also helps those artists who are great at creating (eg: a brilliant songwriter who can't sing or gets stage fright), but shit-house at everything else - marketing, performing, business management, etc.
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