BREIN Scores Another Victory, Making It Suck Even More To Be A Dutch Internet Company

from the holy-secondary-liability dept

Thu, Oct 25th 2012 3:33pm — Mike Masnick

Torrentfreak reports on a really scary ruling coming out of the Netherlands, in which a court found hosting company XS Networks liable and ordered it to pay up because it hosted a torrent site. We've discussed issues of secondary liability, but this goes well beyond what we've seen elsewhere. As TorrentFreak explains, super-aggressive Dutch anti-piracy organization BREIN was trying to shut down the site SumoTorrent and get information about its operators. XS Networks, who briefly hosted the site, pointed out that it required a court order to turn over any info. This is a perfectly reasonable stance. However, it later backed down and reached an "agreement" with BREIN to hand over some info. By that time SumoTorrent had moved on to another host, and the info that XS Networks had to give to BREIN was incorrect or useless. BREIN then claimed that XS Networks was responsible for this situation and sued for damages.

This is the point that any reasonable court would laugh at BREIN and tell its boss Tim Kuik to learn a little something about suing the proper party, rather than a tool provider (especially one who simply asked for a court order before coughing up private info and who later was clearly willing to negotiate in good faith). Instead, the court went in the other direction, and said that SumoTorrent "is clearly facilitating copyright infringement" and that XS Networks should have magically known that to be the case, and shut the site down when BREIN first asked. Even if you're a copyright system supporter, this ruling should scare you. It takes away any sort of due process. Most reasonable people admit that whether or not a site is illegal should require at least a basic adversarial trial in which the site is able to make its case. But here the court ignores all of that, and the fact that it hadn't yet proved SumoTorrent guilty of infringement, and just insists that XS Networks should have magically accepted that BREIN must be right. Talk about a recipe for abuse by BREIN and other copyright holders.

If you're a hosting company in the Netherlands, your legal liability just shot way, way up. Apparently, if you don't magically kick off every site that might be enabling someone to break the law, you yourself may be liable for any illegal actions done on the site (even without such illegality ever being proved). That seems like a great recipe to get a bunch of Dutch hosting companies to reconsider even being in business.

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Filed Under: hosting, liability, netherlands
Companies: brein, sumotorrent, xs networks

44 Comments

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Beech, 25 Oct 2012 @ 3:46pm

Not good enough
Not good enough! Now they should sue the host's ISP!
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silverscarcat (profile), 25 Oct 2012 @ 3:55pm

So...
Iceland's got some good stuff going on...

Are servers all going to move to Iceland soon?
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Divide by Zero (profile), 25 Oct 2012 @ 3:56pm

Maybe they should all just sue themselves for making the content available in the first place, thereby making themselves the original party guilty of facilitating infringement.
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Anonymous Coward, 25 Oct 2012 @ 3:57pm

I think they should sue the content creators since they are creating content that is being pirated.
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Chosen Reject (profile), 25 Oct 2012 @ 4:00pm

Re: Not good enough
Personally, I would have gone after the bank for the ISP of the host of the torrent website where people might be sharing torrent files that may or may not contain information about where to find content that is possibly infringing.
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Zos (profile), 25 Oct 2012 @ 4:02pm

I wonder how big the data farm business was in the Netherlands last week? i wonder how big it is today... i'm betting this causes some chilling effects.
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Androgynous Cowherd, 25 Oct 2012 @ 4:06pm

They've come a long way...
The Dutch have clearly come a long way since the Karin Spaink/Scientology kerfuffle.

A long way in the wrong direction.
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Richard (profile), 25 Oct 2012 @ 4:21pm

Re: Re: Not good enough
and the power company that supplies them with electricity!
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This comment has been flagged by the community. Click here to show it

out_of_the_blue, 25 Oct 2012 @ 4:22pm

SumoTorrent "is clearly facilitating copyright infringement"
Don't dash past that. You guys keep straining for legalisms to avoid the obvious, but a glance at files is enough to make that determination, and then -- when the required action is merely shutting down a site -- should cause the physical host to take exactly that action. It can be sorted out later.

That's basically the position I think will emerge. It's NOT a big deal to shut down a site when the evidence is OBVIOUS. Your free speech mantra becomes annoying when other points are clear.

Warning: bad analogy ahead. -- If you were walking down the street on a hot day and glanced into a car and saw a puppy fading from heat stroke, you have SOME slight obligation to take action. Or should feel some anxiety when matters are CLEAR: even I hate to see puppies suffer.

So too does a physical network host have duty to make cursory check upon complaint, and IF the evidence smacks 'em literally in the eye, but they stall with OBVIOUS legalisms, then they've taken on SOME liability.
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Anonymous Coward, 25 Oct 2012 @ 4:40pm

Re: SumoTorrent "is clearly facilitating copyright infringement"
I can make a torrent file with the name "Skyfall_007_(DIVX1080p).torrent" that is nothing more than a picture of a tearful eyed puppy. Does that automatically make it copyright infringement? After all BREIN and other groups are well noted for doing the same thing.
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Pwdrskir (profile), 25 Oct 2012 @ 4:42pm

Data Dump
I'm going to open an ISP in the Netherlands right after I finish opening my new science institute in Italy.
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Chronno S. Trigger (profile), 25 Oct 2012 @ 4:45pm

Re: SumoTorrent "is clearly facilitating copyright infringement"
You're an evil infringer of copyright, you must take yourself off the Internet right now.
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out_of_the_blue, 25 Oct 2012 @ 4:50pm

The Pirate's Planks: compilation of legalisms / excuses.
- Forget about the millions of dollars made, there's a technical flaw in the indictment/process, damn it!

- The corporation isn't in country X, therefore not subject to X's laws.

- Physical network host has NO responsibility except with court order.

- You can't tell which files are "infringing".

- There's too many files to check.

- Most files shared are personal creations: I put a whole bunch up myself.

- You shut down my file host and I lost EVERYTHING!

- Legitimate users will be harmed if action is taken against "pirates".

- You can't shut down a site without widespread harm: this example of criminally stupid file host that removed 1.5 million blogs over one complaint proves it.

- They sold the "movie" to me, now I can do what want with it.

- Google is our friend. Links sites are just exactly like Google. -- You want to stop free speech and ban all search engines!

- It's just a "links" site, has no "infringing" content. They can't even tell what content the links are for. And there's too many to check.

- There's a loophole in the law, and we've crawled through it.

- I have NO moral responsibility to not take the work-product of others. To hell with "copyright".

- Pirates pay for more music than others. Forget that they steal more too.

- Piracy is actually helpful to Big Media: it's simply free advertising.

- Arrrr, I'm a pirate! You can't stop me!

Just off top of head. Will add to.
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Chronno S. Trigger (profile), 25 Oct 2012 @ 4:59pm

Re: The Pirate's Planks: compilation of legalisms / excuses.
What the hell are you still doing on the Internet? You've been accused of infringing on copyright, you must disconnect yourself by your own logic.
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Beech, 25 Oct 2012 @ 5:07pm

Re: Re: Re: Not good enough
And the construction company that built the building the electric company occupies!
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Anonymous Coward, 25 Oct 2012 @ 7:12pm

Re: SumoTorrent "is clearly facilitating copyright infringement"
Aren't you "Dashing the point" yourself? Just because you glance at files and happen to find one that appears to be infringing, that does not mean the host must be FACILITATING that infringement.

Let's say I have a big wall on my property, and I let some local kids paint on it-- "Bobby + Debbie 4 ever" graffiti and such. One day the cops bust down my door at the crack of dawn, drag me off to jail, and seize my property--all because someone had, without my knowledge, painted a graphic depiction of a child being raped on my wall in the middle of the night before.

By your logic, it's obvious that I facilitated the graphic image because there it is.
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Anonymous Coward, 25 Oct 2012 @ 7:29pm

Re: The Pirate's Planks: compilation of legalisms / excuses.
I know you meant for all these "excuses" to sound wrong and therefor bolster your corporate masters' position, but I'm sorry to tell you that while I was previously on the fence on this issue, I find most of them to actually be quite compelling. I'm now squarely in Mike's camp on the issue. Thank you for helping me see the light.
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Scott, 25 Oct 2012 @ 7:35pm

Re: The Pirate's Planks: compilation of legalisms / excuses.
So,OOTB how would you feel if you got caught by the very things you advocate for? Like Mike Foley.
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Scott, 25 Oct 2012 @ 7:39pm

Re: Re: The Pirate's Planks: compilation of legalisms / excuses.
I don't think he was that began with,He just makes it easier for the other camp to win.
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Hephaestus (profile), 25 Oct 2012 @ 8:13pm

Re: SumoTorrent "is clearly facilitating copyright infringement"
According to EU law they can not look at the files, or do CRC check sums with out violating the law. Privacy and all that.
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Hephaestus (profile), 25 Oct 2012 @ 8:18pm

Re: Data Dump
So let me guess. You like guys in orange jump suits wearing wooden shoes and women who have arm pit hair?

What is that fetish called?
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Larry, 25 Oct 2012 @ 8:30pm

Re: SumoTorrent "is clearly facilitating copyright infringement"
At least you admitted up frond that it's a bad analogy.

That said, you don't care about puppies. You just want someone to think you do so that you can feel good about yourself for kicking in car windows. You know, just like the pretend cops on all the TV show these days that stretch the law to "do the right thing" and the muppets watching "agree" with this because they saw the entire lead in where THE LAW WAS BEING BROKEN, WE SHOULD DO SOMETHING!

Douche.
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Gwiz (profile), 25 Oct 2012 @ 8:39pm

Re: SumoTorrent "is clearly facilitating copyright infringement"
You guys keep straining for legalisms to avoid the obvious, but a glance at files is enough to make that determination...

Of all the stupid that you have imparted to us mere mortals, this might take the cake.

Please explain, in detail, how those of us who are not omnipotent are able to determine the copyright status and specific circumstances surrounding the use of said content from a mere glance.
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Anonymous Coward, 25 Oct 2012 @ 10:47pm

Re: SumoTorrent "is clearly facilitating copyright infringement"
If a glance at files was enough to determine infringement we wouldn't have the debacle that was Viacom vs. Youtube.

Why you think bad analogies - self-admitted bad analogies, at that - would help your case is beyond anyone with more intelligence than a bucket of horse manure.
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The eejit (profile), 25 Oct 2012 @ 11:37pm

Re:
No, that would be rational.
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That Anonymous Coward (profile), 25 Oct 2012 @ 11:50pm

So the Dutch want to drive all hosting out of their country on the heels of wanting the right to go anywhere in the world and destroy computers...

And how long before we just cut the Dutch off from the net?

Google has shown this works pretty well.
Cut off the Belgians to give them what they wanted, and when they notice its not all sunshine and lollipops they come back politely asking to be included again.

If we just blackhole all of the Netherlands from the rest of the net because of the insane ideas coming out of there, how long until the citizens ask WTF is going on and demand change?

It appears they are being run by BREIN, who has violated many laws and ruined legal cases with their actions its time to route around the damage until its repaired.
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Anonymous Coward, 26 Oct 2012 @ 12:22am

Re: Re: SumoTorrent "is clearly facilitating copyright infringement"
So Google and the likes of Youtube should all get taken down because there are illegal links and files on there. Lets all sue them on the same arguement of the Dutch ruling.
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Anonymous Coward, 26 Oct 2012 @ 12:24am

Re: SumoTorrent "is clearly facilitating copyright infringement"
So Google and the likes of Youtube should all get taken down because there are illegal links and files on there. Lets all sue them on the same arguement of the Dutch ruling.
After all everyone owes a duty and is bound to report anything that is illegal don't we so lets all sue the host provider of Google and Youtube and every other site that has illegal links and illegal files on them.
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Anonymous Coward, 26 Oct 2012 @ 12:28am

Re:
Lets all cut of the US too.
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Anonymous Coward, 26 Oct 2012 @ 2:51am

Re: The Pirate's Planks: compilation of legalisms / excuses.
There's this little pesky thing called laws, due process, freedom of speech. Youknow, those rules that your corporate masters spend so much time and money to get changed in their supposed favor. But nah, fuck that, as long as it's "obvious". Copyright is more important than any of that.
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Anonymous Coward, 26 Oct 2012 @ 3:40am

it sounds to me like the best option for Holland would be for all ISPs to just shut down. perhaps that would keep BREIN and the entertainment industries happy. they could then instigate the closing down of the entire internet, except for governments and businesses, which is the ultimate aim anyway. noi country, government, law enforcement agency or business wants the public using the internet at all, if they can be stopped. if that cant be achieved, allowing the public to use it only in the ways dictated, is the next best thing. you think that isn't the way things are going? wait a couple of years and see what it's like then. and why has it gotten like this? because certain people in certain industries couldn't bear the thought of possibly losing control on how their products were being distributed!
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Niall (profile), 26 Oct 2012 @ 5:15am

Re: Re:
The Netherlands called. They want New Amsterdam back.
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Anonymous Coward, 26 Oct 2012 @ 6:05am

Re: The Pirate's Planks: compilation of legalisms / excuses.
" The corporation isn't in country X, therefore not subject to X's laws."

You sir are a fool.

Do you let your wife out alone in public?
If so both you and her should be shipped off to an Iraqi prison!
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Roman, 26 Oct 2012 @ 8:02am

DMCA
Ah the DMCA - my least-favorite tech law, my least-favorite song by the Village People, and my least-favorite TMNT spin-off.
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Not an Electronic Rodent (profile), 26 Oct 2012 @ 8:28am

Re: Re: Re: Re: Not good enough
Woah! Woah! If you keep going like that back up the chain, you're going to eventually get to the government that allowed the hosting, electricity, etc companies to exist in their country liable for infringement! ..... oh.. wait.. um, carry on.
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That Anonymous Coward (profile), 26 Oct 2012 @ 8:40am

And the insanity gets better....
Everyone must be a pirate, so give us a levy on all the new toys.
https://torrentfreak.com/dutch-get-piracy-levy-for-tablets-phones-and-usb-drives-121025/
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Rikuo (profile), 26 Oct 2012 @ 10:16am

Re: The Pirate's Planks: compilation of legalisms / excuses.
Yes and each and every single one of those a legitimate and valid point that has been raised time and time and time again here on Techdirt and elsewhere.
If you now go off on a tangent and say they're not, you're saying you don't care at all what anyone else has to say about copyright: to protect it is the holiest duty of all and to even question it is to tempt the Wrath of God.
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Rikuo (profile), 26 Oct 2012 @ 10:17am

Re: Re: The Pirate's Planks: compilation of legalisms / excuses.
Welcome to the team! *Big round of applause is magically heard*
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Not an Electronic Rodent (profile), 26 Oct 2012 @ 10:40am

Re:
... and even if such a thing happened it still wouldn't prevent "piracy".
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MahaliaShere (profile), 26 Oct 2012 @ 10:55am

Re: And the insanity gets better....
"The money that�s collected, up to 5 euro per device, will be distributed to copyright holders."

Copyright holders, not the artists who created the content. Because morality!

I do like the article image though. Something about it...
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Anonymous Coward, 26 Oct 2012 @ 1:55pm

Re: Re: And the insanity gets better....
When I see these sorts of schemes I always wonder who decides how much each copyright holder gets. Are foreign copyrights included? Does somebody with one published poem get the same share as ABC/Disney or Viacom?

And most importantly, how much do I have to publish to get my "share"?
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ddd, 26 Oct 2012 @ 2:12pm

'That seems like a great recipe to get a bunch of Dutch hosting companies to reconsider even being in business.'

Which is what the MAFIAA actually want. To close down the internet is to end the exchange of information.
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RonKaminsky (profile), 27 Oct 2012 @ 10:01am

Re: Re:
Outlawing communication might work --- but then they'd have a hard time letting people know about the new law, I suppose.
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