Dutch Phone Book Publisher Uses Trademark Bullying In Attempt To Shut Down Critic

from the no,-that's-German-for-'the-phone-book,-the' dept

Mike recently discussed the ridiculous assertion that copyright can't be used for censorship, despite the fact that it has clearly been used to do exactly that multiple times. And it's not just copyright being waved around by IP thugs like a Louisville Slugger with a © on the sweet spot. Claims of trademark infringement have been used as a handy beating implement in attempts to silence criticism (like "[x] company sucks" sites) or keep a competitor from detailing the superiority of its product.

Fortunately, infringement claims like these rarely succeed in doing anything more than driving more eyeballs to the offending content. Another attempt to "swing for the fences" with the trademark bat has resulted in the plaintiff hitting itself squarely in the face, this time over in the Netherlands. This particular self-beating revolves around a relic from days past know as "The Phone Book."

Much like in the US, everyone in the Netherlands receives a phone book whether they want one or not. (Fortunately, it looks like the Dutch only receive one, unlike many metro areas, where two or three phone books [minimum] are crammed into mailboxes or dumped unceremoniously on doorsteps every year. And it's not just a "big city" problem. I live in a town of 1,300 and I get three [3][!] phone books every year.) You can opt out, but the phone book publisher would very much rather you didn't. 24oranges has more details on one man's fight against the wishes of the dying [via Overlawyered]:

To help stop this form of harassment, a guy called Alexander Klöpping has registered a URL called sterftelefoongidssterf.nl(diephonebookdie) which redirects to the phone book cancellation form. In other words, if you want the phone book to be eliminated (‘die’) from your life, follow that link.

Or don't follow it. 24oranges points out that De Telefoongids has been known to ignore cancellation requests. Also this: the URL is no longer live. (Thanks to Google Cache, you can still enjoy the heady rush of a URL redirect. WHEE!!!)

And that's all Klöpping's URL did: redirect users to the cancellation form on De Telefoongids' website. Apparently, using "telefoongid" in the URL was somehow a "trademark violation" and Klöpping was ordered to cease and desist. Klöpping wasn't having it:

Klöpping replied that he will take the URL offline as soon as the dead tree merchant stops shoving the equivalent of “months of advertising leaflets”, and “half a percent of all paper used in the Netherlands” through everybody’s mailboxes, including those of people that have indicated they want to receive no advertisements through the legally binding “ja-nee” and “nee-nee” stickers (yes-no and no-no).

When the continued success of your business relies on ignoring "legally binding stickers," perhaps it's time to reconsider your distribution plan. Selling advertising space in redundant stack of paper is tough, but ignoring both stickers and your own webform is only going to get you dragged into court, rather than the other way around.

It didn't take long for De Telefoongid's bullying tactics to turn into self-inflicted wounds. Within 24 hours of the public dustup, the Dutch parliament called for making the phone book opt-in, something that should be implemented worldwide. Of course, some people still use the phone book and by all means, they should still receive one. Until opt-in becomes the norm, the rest of us can continue to use them as paperweights, booster seats, kindling and conversation starters to aid in engaging our sullen teens and tweens.

Filed Under: critic, netherlands, phone book, speech, trademark

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 Appeals Court Says eBay Subsidiary Not Liable For Infringement By Users

from the but-what-about-the-pirate-bay? dept

While the Dutch courts forced local ISPs to block The Pirate Bay, kicking off a hilariously pointless and never-ending game of whac-a-mole, it's still never been fully explained why TPB -- as an intermediary -- should be liable for the infringement done by its users. In fact, a new ruling in a Dutch appeals court seems to suggest that neutral intermediaries deserve full protection from liability for infringement by their users. The ruling seems to focus more on trademark, but also appears to reference copyright as well. It involves an eBay subsidiary, Markplaats, and Stokke, makers of a high chair, who felt there was infringement on Markplaats. The case seems similar, in many ways, to a number of trademark cases filed around the globe against eBay.

Here, the court said that a neutral intermediary is not responsible for infringement done by users, and cited last summer's European Court of Justice ruling in the eBay/L'Oreal case. We found that ruling to leave open way too many loopholes that would make intermediaries liable, but thankfully, the appeals court in the Netherlands recognized the key issues, and insisted that Marplaats retains its status as a neutral platform even though it provides many more functions beyond just hosting. The court found that since the functions it performs don't favor either buyers or sellers, it still is considered a "neutral" intermediary.

The court also looked at whether or not certain remedies that Stokke was pushing for made sense, and noted that injunctions that required pro-active monitoring to prevent infringement did not make sense, in part because they seemed disproportionate and expensive. It similarly rejects a "notice and stay-down" provision (like a notice and take-down, but which also requires proactive blocking of any future attempts to post something infringing), noting that such a system would be costly and provide little real benefit.

Overall, this latest ruling seems to make sense, and properly focuses the liability question away from the intermediary tool provider. However, I do wonder how the court rulings against The Pirate Bay (and against neutral proxy services) make sense under a similar light.

Filed Under: european court of justice, furniture, isp, liability, netherlands
Companies: ebay, markplaats, stokke, the pirate bay

Netherlands Pre-Warns EU Parliament That It Will Not Accept ACTA

from the good-for-them dept

With critical votes in the EU Parliament on ACTA quickly approaching, the Dutch House of Representatives decided to take a pre-emptive strike, and unanimously accept a motion that urged the Cabinet to reject ACTA, while also rejecting "any future treaty that may harm a free and open Internet." Of course, this is the same Netherlands whose courts are currently censoring a local political party for setting up an internet proxy, so it appears there's at least some confusion in that country. Either way, it's nice to see this pre-emptive strike, though it's not clear how much power the Dutch government would have to reject ACTA if the EU Parliament accepted it...

Filed Under: acta, eu parliament, european union, netherlands

Dutch Judge's Anti-Piracy Activities Draw Accusations Of Corruption In Pirate Bay Censorship

from the conflicts-of-interest dept

We were a bit surprised last week to hear that a court in the Netherlands had ruled that the Dutch Pirate Party had to censor itself, when it came to explaining to people how to use proxies to get around The Pirate Bay block. At some point such censorship needs to be seen as a fundamental violation of human rights. If you are going to block a website, that's one thing. But blocking a political party from demonstrating the ridiculousness of such a block by ordering them not to talk about it? You're just asking for trouble.

However, we should have remembered that we've seen this kind of thing in the past in the Netherlands. A couple years ago, a court blocked the usenet community site FTD. FTD did not host any infringing content. It did not offer torrents of any infringing content. It was simply a community offering that some people used to post information on where you could find infringement. And for that, it was blocked. And yet... some people noticed at the time that the judge in that case taught "anti-piracy" classes, where the person running the events was the lawyer representing the entertainment industry in that same case.

Guess what? Turns out the judge in this case was that exact same judge, leading Pirate Party founder Rick Falkvinge to accuse him of beiing "not only corrupt, but textbook corrupt." Don't they have conflict of interest rules in the Netherlands?

Filed Under: censorship, corruption, ftd, netherlands, pirate party, rick falkvinge

MPAA: Censorship Is Good For Consumers

from the say-what-now? dept

Ah, the MPAA. Hardly a day goes by when someone there doesn't say something positively ridiculous. The latest is a reaction to the news that a court in the Netherlands has expanded the censorship of The Pirate Bay to a few more ISPs. The MPAA has decided to explain that this kind of censorship is good for consumers:

The UK ruling and indeed other recent ones in Austria, Belgium, Denmark and Finland as well as this one are positive developments that support not only the creative community but also consumers.

It's not entirely clear why they say "the UK ruling," since the post only refers to a ruling from The Netherlands, but it's a strange world when someone is claiming that censoring a website that consumers find useful is "good for consumers." So how do they defend such a ridiculous claim? Well, by getting the story backwards yet again:

The number of sites that offer legitimate creative content continues to increase dramatically. But to fully enable this growing sector to thrive and provide consumers with content when they want it, where they want it and how they want it, it is imperative that the content not be siphoned off and distributed illegally by those seeking to profit from the work and creativity of others.

Hogwash. First of all, if the industry had its way, it would never have to innovate online at all, preferring greatly to live off of the old system of DVDs with crippling DRM. The only reason they were pushed to start innovating online was because of competition from the likes of The Pirate Bay, which finally caused them to agree to license platforms like Netflix, which has shown that it's actually quite easy to compete with The Pirate Bay if the MPAA and its studios would stop demanding ridiculous restrictions on content (and insanely high prices). Offer a good service at a good price, and The Pirate Bay simply can't compete.

The claim that for such services to thrive the content can't be "siphoned off and distributed illegally" is again totally bogus. Netflix competes quite nicely in the US with The Pirate Bay, and if the studios allowed more Netflixes to exist (rather than locking down every competitor with stupid rules like only having 24 hours to watch a movie) there would be plenty of innovation. Furthermore, even if they block The Pirate Bay, it doesn't stop the fact that the content still is and will be available. Claiming that legitimate sites can't compete if there is unauthorized content available means that legitimate sites can't compete at all. Yet we see them compete successfully with unauthorized content all the time.

So why does the MPAA lie?

As always, it's about control. They don't like being pressured by such innovation. They don't like having to adapt and to change. So they attack any new form of innovation and brand it as piracy -- just as they did with the VCR. Of course, amusingly, it's now that same home movie revenue which they fear losing. Yet if the MPAA had had its way 30 years ago, there would be no home movie market from which to lose revenue. Because, just a few short decades ago, the MPAA insisted that such a market would kill Hollywood.

Oh, and as for this point:

The court verdict found that The Pirate Bay is predominantly devoted to illegal activities with more than 90% of all content infringing on copyright.

You know what else had more than 90% infringement in the early days? The VCR. But thankfully courts recognized that it also had substantial non-infringing uses -- as does The Pirate Bay. It's not difficult to see how the industry could have embraced sites like The Pirate Bay to their own advantage, but failing that and having them censored... and then insisting that somehow benefits the public? Sorry, the public isn't going to buy that kind of crap.

Filed Under: censorship, drm, netherlands
Companies: mpaa, netflix, the pirate bay

Court Goes Censorship Crazy Against Dutch Pirate Party

from the whac-whac-whac-a-mole dept

We've been covering the attempts by Dutch anti-piracy operator BREIN to play a legal game of whac-a-mole to block The Pirate Bay by forcing ISPs to block access, then blocking proxies that provide access, and now blocking anyone from even talking about ways to get to The Pirate Bay. Bizarrely, a court in The Hague has agreed, and has come out in favor of blocking the Dutch Pirate Party from even discussing some of this stuff:

The Court specifically ruled that the Party’s reverse proxy has to remain offline. It was further ordered that Pirate Bay domains and IP-addresses have to be filtered from the Pirate Party’s generic proxy. In addition the Pirate Party can’t link to other websites that allow the public to bypass the blockade. These orders are only valid when paired with an encouragement to circumvent.

Basically, telling people how to get around a block, even if it's linking to a general proxy (not a specific one) is now barred in the Netherlands. The fact that the court now is telling proxies how they can work is a huge overreach. That seems like a pretty blatant restriction on free speech. The thing is, do the folks at BREIN actually think this charade is effective? All it seems to be doing is enraging tons of people in the Netherlands, and doing absolutely nothing to stop them from going to The Pirate Bay.

Filed Under: brein, censorship, netherlands, proxy, the hague, whac-a-mole
Companies: the pirate bay

Ubuntu's Mark Shuttleworth Predicts That Countries Who Limit Patents Will Have More Innovation

from the but-of-course dept

The BBC has an interesting article about Mark Shuttleworth and Ubuntu, and some of the innovations Canonical is working on. There's some good stuff in there, but what caught my attention was the bit at the end about patents:

"We know that we are sort of dancing naked through a minefield and there are much bigger institutions driving tanks through," Mr Shuttleworth says.

"It's basically impossible to ship any kind of working software without potentially trampling on some patent somewhere in the world, and it's completely impossible to do anything to prevent that.

"The patents system is being used to slow down a lot of healthy competition and that's a real problem. I think that the countries that have essentially figured that out and put hard limits on what you can patent will in fact do better."

Of course, this is the exact opposite of what the patent system is supposed to do -- but pretty much everyone who's actually innovating these days seems to recognize the same thing. What amazes me is that we haven't seen more of what Mark hints at towards the very end: countries providing explicit safe havens around patents. We have examples of this in the past -- perhaps most famously, the Netherlands and Switzerland in the latter half of the 19th century. The Netherlands dumped patents entirely, while the Swiss limited what was patentable massively (to the point that very little was considered patentable at all). And both countries saw economic growth as a result -- where industry and innovation flocked to both countries because they weren't being held back by patent disputes.

It does seem that perhaps some folks in the Netherlands remember this. There's an ongoing effort called the Appsterdam Foundation (in Amsterdam, of course), where part of the goal is to help protect app makers from crazy patent lawsuits. But I'm waiting for even more recognition from countries that this is a real growth opportunity. Assuming that countries have the nerves to withstand having the US taunt them each year with placement on the Special 301 list, there's a real opportunity for a developed nation to have innovation show up in droves by massively limiting patents.

Filed Under: appsterdam, mark shuttleworth, netherlands, special 301 list, switzerland
Companies: canonical, ubuntu