Dangerous Copyright Ruling In Europe Opens The Door To Widespread Censorship

from the bad-news dept

The EU Court of Justice (CJEU) has been issuing some seriously dangerous copyright rulings recently. Last fall, for example, there was the ruling saying that mere links to infringing content could be direct infringement, rather than indirect (or not infringing at all). Even worse, that ruling argued that posting hyperlinks on a site that is "for profit" requires an assumption that the platform is sophisticated enough to make sure the links are not to infringing content. As we warned that would lead to problematic results, such as a followup ruling in Sweden that merely embedding a YouTube video can be seen as infringing.

Given that background it is not surprising, but still rather unfortunate, that the latest CJEU ruling on copyright takes this to the next level. It basically ignores the clear safe harbors of the EU's Copyright Directive -- which note that platforms should not be responsible for infringing actions of their users -- and says that the Pirate Bay is liable for infringement by its users because it has made infringing works "available."

In today’s judgment, the Court holds that the making available and management of an online sharing platform must be considered to be an act of communication for the purposes of the directive.

That's... a very dangerous interpretation of the law. It undermines two very important concepts in just one sentence. The first is the basic concept of intermediary liability protections -- which say that a platform should not and cannot be held liable for the actions of its users. This should be common sense. If the users break the law, go after the users, not the tools they use. This ruling does the opposite. The second concept that is undermined here is that for infringement to actually occur, distribution (i.e., actual copying) has to happen. Instead, this ruling embraces the twisted notion that merely "making available" a work is somehow infringing. And, here, the court not only gets both of those important concepts wrong, but merges the wrongness together, such that a platform that people use to make works available is suddenly liable for the theoretical infringement of those works. That's... bizarre.

And, of course, the end result of this is that the CJEU is basically clearing the way for courts to order ISPs to block the Pirate Bay entirely (even non-infringing content on TPB). The folks over at TorrentFreak have the background details on the case, which involve attempts by the Dutch anti-piracy organization BREIN to demand that ISPs block all access to TPB. This ruling clears the way for that to happen.

There are other problematic parts of the CJEU ruling (the full text is not yet out, but this is from the press release from the CJEU explaining the ruling). Here, for example, the Court tries to justify ignoring the intermediary liability protections that should be afforded to a platform by trying to argue that TPB somehow does more, which makes it deserving of being liable:

Whilst it accepts that the works in question are placed online by the users, the Court highlights the fact that the operators of the platform play an essential role in making those works available. In that context, the Court notes that the operators of the platform index the torrent files so that the works to which those files refer can be easily located and downloaded by users. ‘The Pirate Bay’ also offers — in addition to a search engine — categories based on the type of the works, their genre or their popularity. Furthermore, the operators delete obsolete or faulty torrent files and actively filter some content.

But think about that for a second. That's the kind of thing that basically any platform does. Indexing what users post on your platform is a standard thing. I mean, our search here has indexed what uses post in the comments, but that shouldn't magically make us liable for what users post in the comments. Second, the fact that they "delete obsolete or faulty torrent files and actively filter some content" shouldn't magically make them liable. In fact, this is exactly why, in the US context, we have a section of CDA 230 that explicitly says that moderating some content shouldn't make you liable for that which you left up. That's because the end result of reading the law this way will be the exact opposite of what most people want. That is, based on this ruling platforms should not moderate any content at all because the court says that doing so suddenly makes you liable for that which you did not moderate. Thus it actually actively discourages content moderation.

The other problematic part from the press release about the ruling is this:

Moreover, the operators of ‘The Pirate Bay’ have been informed that their platform provides access to copyright-protected works published without the authorisation of the rightholders. In addition, the same operators expressly display, on blogs and forums accessible on that platform, their intention of making protected works available to users, and encourage the latter to make copies of those works. In any event, it is clear from the Hoge Raad’s decision that the operators of ‘The Pirate Bay’ cannot be unaware that this platform provides access to works published without the consent of the rightholders.

Again, this should not and cannot be the basis for liability. Again, within the US context, we went over this in the Viacom v. YouTube case. It's one thing to know that some infringement happens via your platform. It's another thing entirely to know which content is infringing. That's not as easy to figure out as some people insist. Again, this kind of thinking would outlaw things like the VCR. Yes, the makers of VCRs knew that some infringing content would be viewed or recorded via the devices, but the device makers were not held liable for that. This CJEU ruling seems to break with all of that.

And while representatives from The Pirate Bay are laughing off this ruling (quoted in the Torrentfreak article above), it won't be a laughing matter for many other companies who may face expanded liability because of this mixed up ruling. It also, likely, will depress entrepreneurship and innovation in the platform space in the EU. All because the legacy content industry is so infatuated with The Pirate Bay that it won't focus on improving its own offerings instead.

Filed Under: censorship, cjeu, copyright, intermediary liability, making available
Companies: brein, the pirate bay

Dutch Court Rules That Freely Given Fan-Subtitles Are Copyright Infringement

from the can-you-translate-that? dept

For some reason, there has been a sub-war raging for more than a decade between anti-piracy groups and fans who create free subtitles for content so other regions can enjoy that same content. While much of this war has been fought for years on the anime front of all places, the conflict has spread to mainstream movies and television as well. And it is a painfully dumb war to fight at all for the content creators, whose publishers have failed to provide the subtitle translations that are obviously in demand, and which would open up new markets at no cost for them. Instead, they typically choose to scream "Copyright infringement!" at these fans instead.

In the Netherlands, one group of fans that creates free subtitles in this way took BREIN to court to have its work declared kosher. Unfortunately, the Dutch court appears to have drunk the BREIN kool-aid on how fan subtitles are the bane of the entertainment industry and used only by pirate-y pirate types.

The Free Subtitles Foundation, after coming under fire from the Netherlands' anti-piracy association BREIN, decided to raise some money and take BREIN to court. The Foundation's lawyer told TorrentFreak that the lawsuit sought to clarify whether the creators of a TV show or movie can reserve the right to create and distribute subtitles.

And indeed, that's exactly what the court ruled: that subtitles can only be created and distributed with permission from the rights holders. Doing so without permission is copyright infringement, and thus punishable with either jail time or a fine, depending on where you live.

Now, FSF took this to court because BREIN has a habit of threatening fans who create these free subtitles. It's important to draw the distinction that this is about copyright here, because the key point in all of this is that BREIN does not have to threaten fansubbers at all. This isn't trademark law. There is no requirement to police this sort of thing. This kind of action only makes sense if either fansubs are a true danger to the entertainment industry or if BREIN and other anti-piracy groups are in the habit of seeing dangers everywhere they look and picking unneccesary fights.

One of those is certainly true. Fansubs, long vilified by the content industries, have actually been shown to open up entire new markets for content where the creator or publisher didn't bother to create subtitles for those markets. And, taking a step back, the very, very simple fact is that fansubs wouldn't be needed at all if those same subtitles were offered up by the publishers themselves.

Much like file sharing websites themselves, actually policing subtitle sites will be difficult. Just look at the world of anime fansubbing, which has been under fire for more than a decade but is still going strong—or, in some cases, has shifted to just straight-up anime streaming websites with baked-in English subtitles. A better solution might be for content creators and distributors to release officially subtitled content simultaneously worldwide, much in the same way that some big American TV shows and movies are now being released in Europe and Asia at the same time, rather than a few months or years later.

What fansubs actually do is serve as free market research for content publishers to determine where additional demand for their content is geographically. A freely given fanmade subtitle to a movie or show is only necessary when content providers don't provide it first. The product is not serving the market in which the subtitles will be used, which makes targeting them for copyright infringement all sorts of silly.

Filed Under: copyright, fansubs, netherlands, subtitles
Companies: brein

BREIN Loses Again As Dutch Court Rejects Criminal Prosecution For Copyright Infringement

from the not-so-invincible dept

Once upon a time, the Dutch "anti-piracy" group BREIN seemed invincible, winning a number of copyright infringement cases. But recently, its winning streak has come to an end. Last week we reported on how BREIN's attempt to block access to The Pirate Bay had been thrown out, and now we have the following case, as reported by TorrentFreak:

A Dutch man who admitted uploading more than 5,000 e-books to The Pirate Bay has had his case dismissed on appeal. The court ruled that the man can't be prosecuted criminally as copyright infringement cases belong in a civil court. Anti-piracy group BREIN is disappointed, but still has the option to pursue the uploader in a civil action.

Even if BREIN wins that action, the appeal court's decision is a serious defeat for the organization. It means BREIN has failed in its attempt to extend the use of criminal courts to cases that do not involve a criminal organization and where the infringements are not carried out as business activities. Had BREIN been successful, that widening of scope would have had a major impact on the Dutch copyright enforcement landscape.

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Filed Under: copyright infringement, criminal, netherlands
Companies: brein

Dutch Court Says Pirate Bay Block Is Disproportionate, Ineffective And Harming Entrepreneurial Freedom

from the down-but-not-out dept

Two years ago, Techdirt reported on a couple of leading Dutch ISPs being ordered to block The Pirate Bay. To their huge credit, they did not take this lying down: they have been fighting it in the courts since, and have just won a major victory against the Dutch "anti-piracy" group BREIN. TorrentFreak has the details:

In its ruling the Court states that the Pirate Bay blockade is disproportionate and ineffective, citing TNO research and the Baywatch report of the University of Amsterdam. As a result, the blockade was found to hinder the Internet providers' entrepreneurial freedoms.

The court based its decision on the Charter of Fundamental Rights of the European Union, which both includes "freedom to conduct a business" and "right to property." In this case the entrepreneurial freedom outweighs property rights, because the blockades are disproportionate and ineffective.

Based on the above, the appeal court overturned the blocking order and ordered the Hollywood-funded anti-piracy group to pay 326,000 euros ($445,000) in legal fees.

That's a great result for a number of reasons. First, because it overturns the block on The Pirate Bay for the two Dutch ISPs concerned (and probably for other ISPs too.) Secondly, because it forces BREIN to pay the significant costs for its long-running attempt to tell ISPs how they should run their businesses. And thirdly, and perhaps mostly importantly, because it creates a precedent that underlines not only the pointlessness of trying to enforce an ineffectual blockade, but also the fact that entrepreneurial freedom outweighs copyright in this situation. Although that ruling only applies in the Netherlands, other courts in Europe may well take it into consideration when they are called upon to make similar rulings.

However, there is the possibility that BREIN will appeal, as Computerworld UK reports:

The case can be appealed to the Supreme Court, said a spokesman for the Court of Appeals. But while the Supreme Court is able to overrule the verdicts of lower courts, it only examines whether a lower court observed proper application of the law in reaching its decision. At this stage of the legal process, the facts of the case as established by the lower court are no longer the subject of the court's scrutiny.

It is too early to say if the case would be appealed, said Brein attorney Joris van Manen, adding that it is certainly worth considering.

So it would seem that BREIN may be down in this case, but it is not yet out.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: blocks, internet freedom, netherlands
Companies: brein, the pirate bay

RIAA Still Can't Figure Out How To Use Google's DMCA Tools, Blames Google

from the but-of-course dept

This will hardly comes as a surprise, but the RIAA and other "anti-piracy groups" are still complaining that Google "isn't doing enough" to prop up their old and obsolete business models. The latest complaint? That Google's system only accepts a mere 10,000 DMCA takedowns per day and somehow that's just not enough. It turns out that this isn't actually true, but we'll get to that in a moment. Much of the article focuses on Dutch extremist anti-piracy group BREIN saying that the limit needs to go away. But there is this bizarre statement from the RIAA as well:

“Google has the resources to allow take downs that would more meaningfully address the piracy problem it recognizes, given that it likely indexes hundreds of millions of links per day. Yet this limitation remains despite requests to remove it,” RIAA noted.

In addition to unthrottling the URL limits, RIAA also says it wants to lift the cap on the number of queries they can execute per day to find infringing content.

“Google places artificial limits on the number of queries that can be made by a copyright owner to identify infringements.”

This seems wrong on a variety of levels. As we noted last year when the RIAA raised some of these complaints, part of the problem appears to be that the RIAA doesn't understand how Google's tools work. There are some technical limitations in terms of how many URLs a "trusted partner" using automated means can submit at once, but no actual limit on the number of URLs that can be submitted total. There's a practical reason for the setup: in case an automated system goes haywire, Google wants to be able to catch it. But that's it. It does not limit the searches or the ability to submit DMCAs. We asked Google for specifics, and they confirmed:

While there is no limit on the number of DMCA notices that a copyright owner or reporting organization may send us, we put safety limits on the number of automated submissions that partners can make at one time using our tools in order to protect our systems from technical problems. We increase these limits for partners who have demonstrated a consistent track record of submission quality and volume.

On top of that, there's the issue that takedown notices go through a review process before the takedowns happen, to hopefully weed out abuse. For the RIAA to compare handling of takedown messages to the automated process of searching is really bizarre. It's basically them saying they want to be able to automatically takedown any content with no review whatsoever. That's a massive problem for a variety of obvious reasons. Indexing the web for search is an automated process. Taking sites down requires at least some level of review, even if only cursory. Apparently, the RIAA not only misunderstands the tools available, but also the DMCA process itself.

Filed Under: copyright, dmca, limits, takedowns, tools
Companies: brein, google, riaa

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

from the holy-secondary-liability dept

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.

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

Dutch Court Says Linking Can Be A Form of Copyright Infringement

from the seems-a-bit-extreme dept

A somewhat troubling ruling has come out of a court in the Netherlands, where it has found that linking to infringing content could be infringing itself, if certain conditions are met (which they were in this case). The key part here was that the site that was sued was linking to material first, and thus revealing it to the world... even though it does not appear that the site in question uploaded or hosted the content. This is troubling for a variety of reasons which we'll get to, but first the background of the case.

A Dutch television presenter, Britt Dekker, did a nude photoshoot for Playboy, and a bunch of the images leaked ahead of the December, 2011 release of the magazine. A website called GeenStijl.nl had a story about it, and included a link to a zip file that contained all the images that had been uploaded to the cyberlocker FileFactory.com. Playboy had the file taken down from FileFactory, and GeenStijl linked again to the same images on Imageshack. And from there a game of whac-a-mole followed with Playboy having the images taken down, but the images quickly spread all over the place. For what it's worth, at the time, there was a lot of speculation that Playboy itself had leaked the images to build up buzz.

Either way, GeenStijl got sued for copyright infringement -- and they responded by pointing out that they just linked to the content. The court put forth a three pronged test, and found that GeenStijl, even with just links, met the criteria for infringement. As explained on the FutureOfCopyright site (linked above):

The court considered if the publishing of the hyperlinks by GeenStijl.nl constituted a publication (Dutch: ‘openbaarmaking’) as defined in article 12 of the Dutch Copyright Act. In principle, placing a hyperlink on a website is not a publication, unless three criteria are met: there must be an intervention, a new audience and profit.

• Intervention: The leaked pictures of Britt Dekker were stored on FileFactory.com, a cloud service to store files and share them with others. However, these files can’t be found through search engines, only users with the exact URL have access to the files. The URL to the file with the leaked pictures was publicly unknown, until GeenStijl.nl made it available to its large audience by publishing an article about it, the court says. Therefore, the actions of GeenStijl.nl are an intervention, according to the court. Without this intervention, the public wouldn’t have had access to the pictures before their official publication in Playboy.
• New audience: According to the court, there wasn’t an audience for the pictures before GeenStijl.nl published its article.
• Profit: By publishing the URL to the pictures, GeenStijl.nl had the unmistakable intention to attract more visitors, the court states. With success: in 2011, the article about Dekker was the best viewed topic on GeenStijl.nl, according to the statistics.

By my reading, all three of the prongs of the test, as presented here, are somewhat problematic. The reasoning on the first prong -- intervention -- just doesn't seem right. The claim that "the public wouldn't have had access" but for the link on GeenStijl isn't true. They did have access since the files were already on the cyberlocker. GeenStijl perhaps made it a lot more widely known, but at this point you're arguing about whether or not it's legal to make a factual statement. Did the photos exist on a cyberlocker? Yes. Saying so shouldn't be infringing.

The second prong really just seems like a repeat of the first prong. The entire argument that seems to have convinced the court is that GeenStijl was the first to link to the content. Under US law you face much more liability for leaking "pre-release" material, so you could argue that this is a similar situation in the Netherlands, but again, it's not GeenStijl "leaking" the material. They're acting as a journalist, telling people such content exists.

The final prong is completely useless. Basically it seems to say that because the article was popular, that's evidence for infringement. I can't see how that makes any sense at all. If GeenStijl was, for example, selling access to the images, then there's a much stronger argument of "profit." But just saying that because the site got a lot of traffic, they profited seems like a dangerous precedent.

The Future of Copyright article mentions the cases against FTD as being similar, but I'm not sure that's true. While a lower court had found FTD guilty for linking, on appeal it was said that links weren't the problem, it was the promoting of uploads that got FTD in trouble.

Either way, it's of little surprise that Tim Kuik, the head of the Dutch anti-piracy group BREIN, is cheering on this ruling, suggesting that this case will be useful in other efforts to go after sites that link to infringing content. Of course, given the specific nature of the ruling, including how much of it seemed to rely on the fact that GeenStijl was the first to somehow create an audience for these images, I do wonder if it really has that much value for BREIN in those types of cases. Similarly, it may be a bit exaggerated to claim -- as GeenStijl did in response to the ruling -- that the ruling outlaws Google. Again, the ruling does appear to be highly fact-specific.

It is a troubling ruling for a number of reasons. Merely setting up the precedent that a link itself is infringement has all sorts of problematic implications. But the highly specific details associated with the ruling, especially the reliance on being the first to publish the link, at least suggests that this has limited value as a wider precedent.

Filed Under: copyright, infringement, linking, netherlands, playboy, tim kuik
Companies: brein, geenstijl, playboy

Anti-Piracy Song Pirated By Anti-Piracy Group; Collection Society Fined For Failing To Get Royalties

from the follow-that? dept

Well, this is confusing. A few months ago, we wrote about how a composer, Melchior Rietveldt, was in a weird situation in which the song he wrote for a Dutch anti-piracy effort was showing up on DVD anti-piracy ads -- even though his contract quite specifically limited the use of the work to a local film festival. When he discovered that his song was all over some top selling DVDs (including Harry Potter) he sought compensation, going to local music collection society Buma/Stemra, asking them to get the $1.3 million he believed he was owed. Buma/Stemra initially ignored him, and then there was a weird situation in which a Buma/Stemra board member tried to offer to "help" Rietveldt, with some questionable conditions attached, including getting a cut of the money owed.

Apparently, the latest in the case is that Buma/Stemra has now been told to pay Rietveldt €20,000 and attorneys' fees -- and to continue its efforts to get him the royalties actually owed. And yes, this seems a bit confusing. Remember, it was the anti-piracy group and the movie studios who appeared to violate his copyright (yes, on his anti-piracy song). Buma/Strema's job was supposed to be to collect the money. So how is it that they're now the ones being fined? It appears some of it becomes a contractual issue in which Buma/Strema promised to try to collect the fees owed, but apparently didn't do enough after it decided it would be too much work to actually track down those who used the song. The judge in the case noted that, at the very least, Buma/Strema had a duty to inform Rietveldt that it had given up after promising otherwise. Either way, the end result is that the collection society now owes Rietveldt more money and has to continue trying to collect even more. All over an anti-piracy song that was pirated by anti-piracy groups (mainly NVPI, who is apparently the parent group for the well-known anti-piracy organization BREIN).

Filed Under: anti-piracy song, fines, melchior rietveldt, netherlands
Companies: brein, buma/strema, nvpi

Dutch ISP Shows That BitTorrent Traffic Increased After Pirate Bay Ban

from the if-you-keep-doing-what's-not-effective... dept

We've pointed out over and over and over again that enforcement techniques like issuing bans on certain websites don't really work. And yet, the industry keeps insisting that's the path it has to take. When I met Tim Kuik from BREIN (the Dutch anti-piracy group) back in April, he insisted that my characterization of his organization trying to stuff the genie back into the bottle was inaccurate. And yet, BREIN has been on an aggressive run to try to force ISPs to block access to The Pirate Bay. After a series of court rulings, the ISPs had no choice but to comply. Now, one of them, XS4All has published a report noting that BitTorrent traffic on its network appeared to increase following the blockade of The Pirate Bay, rather than the other way around. According to the summary at TorrentFreak, the ISP thinks that perhaps all of the attention paid to this issue, because of the trial, has helped drive more interest in unauthorized file sharing:

“I think that the increase is a result of all the media attention for the lawsuit and the blockade. Perhaps people who until then had never downloaded thought ‘I hear so much about downloading music and movies, let me try it!’.”

Filed Under: bittorrent, isp, netherlands, tim kuik
Companies: brein, the pirate bay

Dutch ISPs Refuse To Block The Pirate Bay Without A Direct Order

from the good-for-them dept

While some Dutch ISPs have been ordered by a court to block access to The Pirate Bay (after fighting it in court for years), the order only applied directly to two ISPs: xs4all and Ziggo. BREIN, the local anti-piracy group, had then demanded that other ISPs also start blocking access. However, it appears that KPN and T-Mobile are refusing, saying that they will not do so without a direct court order:

“KPN sees the blocking of websites as a drastic measure for which a court order is required,” KPN said in a statement, adding that innovation is needed to curb piracy.

“KPN doesn’t believe a blockade is the right solution. What is needed are robust, attractive business models that are easy to use and offer a fair deal to both producers and consumers of content.”

T-Mobile also said that it will only respond to court orders, while it emphasized the value of an open Internet.

“T-Mobile strongly supports an open Internet and is fundamentally against shutting off access to websites. Dutch law is very clear when it comes to blocking access to the Internet. T-Mobile will only respond to a court ruling, not to demands from a private party such as BREIN.”

It's good to see that these ISPs are standing up for the right to an open internet. Of course, I do wonder how such block orders work under Netherlands' (first of its kind) net neutrality law.

In the meantime, the two ISPs who were subject to the court order have begun the blockade, with Ziggo pointing users to an information page... in which they tell users that it's easy to get around the blockade.

Filed Under: blocks, isps, netherlands
Companies: brein, kpn, t-mobile, the pirate bay, xs4all, ziggo