Dutch Supreme Court Agrees To Let Rights Group Collect Back 'You Must Be A Pirate' Taxes On Mp3 Players And Hard Drives

from the after-all,-hard-drives-are-nothing-more-than-gigantic-pirate-vessels dept

For years, Dutch natives have purchased hard drives and mp3 players solely for the purpose of loading them up with purloined mp3s -- or so a recent Dutch Supreme Court decision would have you believe. NORMA, a Dutch collection society, just won its battle against untaxed hardware, which will result in the collection of unpaid "you must be a pirate" taxes being awarded to it, dating back to 2007.

The original "you must be a pirate" tax was levied against blank CDs and DVDs, with those rates being frozen in 2006. NORMA claimed this put the government in breach of the "Copyright Directive," because apparently NORMA is entitled to collect money on anything someone could conceivably use to store media files. In the eyes of the collection society, its members "lost millions of euros in revenue" when blank media sales died off and hard drive/mp3 players increased.

Its press release doesn't state specifically why its stable of artists are "owed" a cut of every storage device sold, but the word "entitled" is deployed. This bizarre reasoning puts us back in the position of wondering whether the artists represented by groups pushing these taxes would just be better off selling storage devices.

Ultimately, it doesn't matter. The court has decided NORMA will get to collect taxes dating back to 2007, stating that it will revisit this in 6 months to see if anyone can agree on how many millions of euros that should be. NORMA's press release also notes it's been successful in instituting a "pirate" tax on smartphones, tablets and PCs, running from 1-5 euros per device depending on storage capacity.

Presumably, like every other rights groups/collection society, the windfall will be paid in top-down fashion, blessing top-selling artists with a few more euros and giving a vast majority of its represented artists nothing at all. This distribution scheme matches up perfectly with the stupidity of the "you must be a pirate tax," ensuring that nearly everyone but the collection society itself gets screwed -- and all in the name of "protecting artists."

Filed Under: cd, collection society, dvd, netherlands, norma, piracy

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.

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

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

EU's Advocate-General Says Dutch Allowing Unauthorized Downloads Is Incompatible With European Copyright Law

from the that's-awkward dept

Back in 2012, Ben Zevenbergen wrote a long piece exploring a complicated Dutch case that had been referred to the Court of Justice of the European Union, the EU's highest court. It concerned the home-copying exception of European copyright legislation, and hinged on the question of whether the Dutch collecting society could charge for the "losses" that result from people downloading both authorized and unauthorized uploads. That distinction needs to be made, since in the Netherlands downloading copyright material is permitted, but uploading it is not. Manufacturers of blank media claimed that they should only have to pay a lower copyright levy that covered just the downloads of legally-uploaded materials.

As is usual in cases sent to the Court of Justice, the EU's Advocate-General (AG) gives an opinion first. Although not binding, that opinion is usually indicative, and rarely ignored. Here's what the Advocate General P. Cruz Villalón has said in this case, as reported by the Future of Copyright site:

The AG notes that the reasoning of the Dutch government has its origin in the fact that the Dutch law tolerates that unauthorized work or material is downloaded from illegal sources and only uploads can be curbed. "Thus the Kingdom of the Netherlands supports indirectly but inevitably, the mass distribution of products resulting from an illegal exploitation of protected works and materials", which, according to Villalon, cannot be regarded as normal. "The trivialization of downloading content that circulates online without proper authorization […] undermines the normal exploitation". This practice is not compatible with the basic idea of EU copyright law, in which it is established that copyright holders are entitled to fair compensation, said Villalón. Furthermore, the AG is of the opinion that current levy rates on empty media carriers are too low to generate a fair compensation.

On that basis, he advised the court to hold that copyright levies should not be allowed on unauthorized downloads. That's a win for the blank media manufacturers, but the Advocate-General's comments about the Dutch approach to filesharing being incompatible with EU copyright law will be problematic for the Netherlands if the Court of Justice agrees.

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

Filed Under: copyright, downloads, eu, eu court of justice, netherlands

Two Pharma Companies Fined Over 'Pay For Delay'; Novartis Unrepentant About Suffering Caused

from the profits-before-patients dept

Back in April of this year, we wrote about a spate of investigations around the world into "pay for delay" deals, whereby a big pharma company essentially buys off manufacturers of generics so that the former can continue to enjoy monopoly pricing long after its patents have expired. One of those involved the European Union, and the two pharma companies Johnson & Johnson and Novartis. As PharmaTimes reports, fines are being imposed on them for their actions:

The European Commission has fined Johnson & Johnson (J&J) just under 10.8 million euros and Novartis 5.49 million euros, after finding that their subsidiaries in the Netherlands had agreed an anticompetitive deal aimed at delaying the market entry there of a generic version of the painkiller Duragesic (fentanyl), thus breaching European Union (EU) antitrust rules.

Of course, such sums are little more than a wrist slap for pharma giants, but it's nonetheless good to see the European Commission making clear that this anti-competitive behavior is not acceptable in the EU:

The payment by J&J to Novartis "shockingly deprived patients in the Netherlands, including people suffering from cancer, from access to a cheaper version of this medicine," said Joaquin Almunia, the European Commission vice president in charge of competitive policy.

Despite that fact, with the likelihood that cancer patients were probably in more pain than was necessary, some remain in denial:

In a statement, Novartis and [its subsidiary] Sandoz say they "reject the Commission's allegation that the 2005 co-promotion agreement was intended to deprive patients in the Netherlands of cheaper medicines."

Whether or not that was the "intention", it was the inevitable effect, and quibbling over the difference shows the moral squalor of companies like Novartis that regard additional suffering of cancer patients as some kind collateral damage that can be ignored in the cause of pumping up their profits.

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

Filed Under: european commission, fines, netherlands, pay for delay, pharmaceuticals
Companies: johnson and johnson, novartis

Discussions On The Abolition Of Patents In The UK, France, Germany And The Netherlands, From 1869

from the a-bit-of-history dept

In the past, I've talked about Eric Schiff's book Industrialization Without National Patents, which takes a close look at how the Netherlands industrialized during a period of time when it explicitly abolished patents -- from 1869 to 1912 -- and Switzerland, during a time when the country's patent system was effectively non-existent for most inventions -- from 1850 until 1907. This academic study, which was published in 1971, does a really good job of digging into the data of what happened in two economies during a period of time when they didn't have patents (spoilers: both did pretty well and actually became centers for certain industries). The Netherlands was perhaps the most interesting, seeing as it was the one country that explicitly chose to abolish its existing patent system in 1869.

Of course, it shouldn't be a surprise to find out that such discussions didn't just take place in the Netherlands, but elsewhere as well. Via Stephan Kinsella and David Koepsell comes the discovery of a book from 1869 concerning Recent Discussions on the Abolition of Patents for Inventions, and covering examples of such discussions in the UK, France, Germany and the Netherlands (for what it's worth, Germany also had no patent system until 1877). The book's subtitle also notes: "With suggestions as to international arrangements regarding inventions and copyright."

The entire work has been helpfully scanned by Google, and since it's well into the public domain, can be displayed in its entirety. In fact, the book (quite interestingly!) has a "no rights are reserved" notice in the beginning. So even if it had been published more recently, it would have been considered in the public domain. Nice to see that even back in 1869 authors were willing to support the public domain by choice.

What's quite incredible as you read through the various letters, speeches and writings in the book is how many of them could fit into today's debate. Right from the beginning, the points sound similar to what the debates today are about:

The fact is, no one, I presume wishes to say that an inventor is undeserving and should go unrewarded. All that the opponents of the Patent system do say is, that the present machinery gives minimum advantage to the inventor, and inflicts maximum disadvantage on the public. Besides, in ninety-nine cases out of a hundred, the patentee is only a simultaneous inventor with a number of others, who lose their labour and ingenuity because one man happens to get in first....

That sounds mighty familiar. Other pieces point out that patents are incompatible with free trade and, there are regular points about how independent or simultaneous invention is happening in most of these cases, rather than anyone "copying" ideas from one another. There's also a discussion on how patents create fuzzy boundaries, which make it terrible if anyone is comparing it to any sort of actual "property right."

The more you look, the more you'll find lines that sound so familiar:

We acknowledge that the man who first constructed a hut was perfectly right in making good his claim against those who would have deprived him of it, and that he was justified in vindicating his claim by force. He had employed his time and strength in building this hut; it was undoubtedly his, and his neighbours acted up to their natural rights and in their own interests in helping him to oppose the intruder. But there ended both the right of the individual and that of the community.

If this first man, not content with claiming his hut had pretended that the idea of building it belonged exclusively to him, and that consequently no other human being had a right to build a similar one, the neighbours would have revolted against so monstrous a pretension, and never would have allowed so mischievous an extension of the right which he had in the produce of his labour....

And if, in our day, imitation of an invention is not generally considered as guilty an act as robbery of tangible property, it is because every one understands the difference between an idea and a thing made or done.

There are plenty more quotes. Take a look through the collection and enjoy -- or be horrified that we're still having these debates 150 years later, and the situation has become worse, not better.

Filed Under: france, germany, netherlands, nineteenth century, patent abolition, patents, public domain, uk

Dutch Telcos Used Customer Metadata, Retained To Fight Terrorism, For Everyday Marketing Purposes

from the I'm-shocked,-shocked dept

One of the ironies of European outrage over the global surveillance conducted by the NSA and GCHQ is that in the EU, communications metadata must be kept by law anyway, although not many people there realize it. That's a consequence of the Data Retention Directive, passed in 2006, which:

requires operators to retain certain categories of data (for identifying users and details of phone calls made and emails sent, excluding the content of those communications) for a period between six months and two years and to make them available, on request, to law enforcement authorities for the purposes of investigating, detecting and prosecuting serious crime and terrorism.

Notice the standard invocation of terrorism and serious crime as a justification for this kind of intrusive data gathering -- the implication being that such highly-personal information would only ever be used for the most heinous of crimes. In particular, it goes without saying that there is no question of it being accessed for anything more trivial -- like this, say:

Some Dutch telecommunications and Internet providers have exploited European Union laws mandating the retention of communications data to fight crime, using the retained data for unauthorised marketing purposes.

Of course, the news will come as no surprise to the many people who warned that exactly this kind of thing would happen if such stores of high-value data were created. But it does at least act as a useful reminder that whatever the protestations that privacy-destroying databases will only ever be used for the most serious crimes, there is always the risk of function creep or -- as in the Netherlands -- outright abuse. The only effective way to stop it is not to retain such personal information in the first place.

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

Filed Under: crimes, data retention, marketing, netherlands, telcos, terrorism

Dutch Libraries Go To Court To Make Sure They Can Lend Ebooks

from the why-is-this-even-a-question? dept

As we've noted before, many publishers have the crazy attitude that ebooks shouldn't be lent by libraries, and that it should be made harder for people to access literature in these places if it's in a digital form. Over in the Netherlands, public libraries have had enough of this, and are taking legal action over the issue, as an article in Future of Copyright reports:

Dutch public libraries are bringing a test case to court. The test case is about the right to lend e-books in public libraries. The public libraries want e-lending to be included in the copyright-exception for public libraries. The association of public libraries therefore take legal action against Stichting Leenrecht, a foundation collecting the lending fees.

The Dutch Copyright Act contains a copyright limitation that allows public libraries to lend physical copies of books. The question was raised whether this exception included also the lending of e-books. If that were the case, it would be a great advantage for public libraries, because they would not have to ask the permission of the copyright holder of the e-book.

The immediate stimulus for the public libraries' move is a report presented by the Dutch Minister of Education to the Dutch Parliament, which looked into the question of lending rights. Unfortunately, the minister came to the view that the lending exception in Dutch copyright law only applied to physical copies of books. The Dutch libraries hope the courts will rule that it should apply to ebooks too. Since this seems to be the first such case anywhere, its outcome will doubtless be watched closely.

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

Filed Under: copyright, ebooks, lending, netherlands, publishers

Do Dutch Spies Also Have Access To PRISM's Data? And If So, Who Else Does?

from the clear-as-mud dept

In the wake of the leaks about NSA's spying activities around the world, one of the interesting subsidiary questions is: who else had access to this stuff? We know that the UK did, and now there are indications the Dutch did as well, according to this report on DutchNews.nl:

Justice minister Ivo Opstelten on Tuesday refused to comment on claims the Dutch security service AIVD works together with the US secret services in collecting information from email and social media traffic.

…

Dutch security service AIVD has also received information on email and social media traffic via US spy system PRISM, the Telegraaf reports on Tuesday.

Some pretty dramatic claims are being made:

If the AIVD lists an American address as suspicious, it is supplied all the information within five minutes, a source told the paper. The source worked for the department which monitored potential Dutch Muslim extremists, the paper said.

Dutch companies also cooperated with the US authorities' request for information, the source said, claiming that 'there are agents ready to deal with requests for information inside companies and institutions.'

'There are a couple of those secret programmes like Prism active in the Netherlands,' the source is quoted as saying.

There are a few points to note here. First, this is a report about a story in the Dutch newspaper Telegraaf, which draws on unnamed sources. So the chain of information is quite long, and it's likely that details have been lost or mischaracterized along the way. It's also worth noting that PRISM is not the only system mentioned here for gleaning information about people. That's probably muddying the waters yet more, as sources reveal tantalizing information about other spying initiatives that then get subsumed under the general heading of PRISM, simply because it's in the headlines at the moment.

That's not to minimize the shocking nature of these revelations -- the idea that spies around the world may be accessing within minutes any private information they want, is troubling -- merely to note that the picture we have of what is going on remains frustratingly vague. And that, of course, is an argument for more transparency from the authorities, both in the US and elsewhere, about what is really happening to our personal information when we go online, and who has access to it.

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

Filed Under: access, data, europe, netherlands, nsa, nsa surveillance, prism, us