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

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 Whac-A-Mole Game Against The Pirate Bay Apparently Works Better Without Due Process

from the judicial-miscarriage dept

Last week, I had the pleasure of meeting, briefly, Tim Kuik, the head of BREIN, the Dutch anti-piracy group that has been fighting against file sharing on a variety of fronts. We had an enjoyable conversation (as part of a larger discussion) in which he insisted that he and BREIN recognized the future opportunities of the digital market, and that BREIN was not interested in trying to put the genie back in the bottle -- in response to my suggestion that too many in the industry were trying to do exactly that. That may be true, but it's difficult to see how that's the case when immediately after this we hear of stories about BREIN going to court to shut down a proxy by the Dutch Pirate Party to point people to The Pirate Bay -- a site that BREIN has forced ISPs to block.

Of course, blocking sites on the web is impossible, and the silly continued whac-a-mole against proxies seems like a huge waste of time and resources that could have been put towards helping to develop compelling new business models. But, a much bigger concern is the process by which this latest proxy was shut down. Or, rather, I should note it's not so much the process, but the lack of due process. That is, a court ordered the proxy to be taken down without allowing the Dutch Pirate Party to testify on its own behalf:

The Pirate Party was not heard in the matter (ex parte) and according to board member “blauwbaard” the judge ignored their requests to be heard.

“The judge has decided to ignore our express and valid request to have the injunction either denied flat-out, or to at least be heard in the matter before a decision was made,” blauwbaard states in a response.

“This decision is even more strange because BREIN was allowed to bring over 20 pages of arguments to convince the judge to stretch a quaint rule of IP-law, meant to block the sudden appearance of mass quantities of counterfeited goods, far enough to be applied to the website of a political party.”

A court ordering a website taken down without allowing the site itself to speak on its behalf? That seems pretty extreme. A proxy is simply a redirect in a case like this. It's something just about anyone can do, and chasing after each and every proxy -- and then not allowing them to speak for themselves in court, seems like a perfect example of trying to put the genie back in the bottle, no matter how much BREIN insists that's not their goal.

And, unfortunately, the story gets even worse, the more it moves forward. The Dutch Pirate Party replaced their proxy with a page that linked to other proxies as well as an explanation of their position. This seems like a classic free speech situation. Except... BREIN claimed that even those links to other proxies violated the injunction, and have demanded the party take them down as well. The Pirate Party appears to be getting ready to fight this, noting that BREIN keeps trying to rewrite the specifics of the court's order (i.e., trying to stuff that genie back into the bottle) every time a different website shows how ridiculous it is to ban internet access to a website.

Filed Under: brein, piracy, pirate party, tim kuik, whac-a-mole
Companies: the pirate bay

Peter Sunde Brings Criminal Charges Against BREIN, Claims They Falsified Documents Against The Pirate Bay

from the spectrial-indeed dept

You may remember, back in July, that a Dutch court made an odd ruling against The Pirate Bay at the behest of BREIN, the local anti-piracy group. Now, there was a lot of things odd about the case. BREIN has always been quite aggressive in demanding that sites be blocked or that ISPs be forced to block sites, but this case went really far. BREIN was able to bring the case without even letting any of the four defendants (the same four who were on trial in Sweden) know about the case. However, BREIN told the court that the defendants were fairly summoned, despite no evidence that was true at all. BREIN also claimed that The Pirate Bay had launched a DDoS attack on BREIN's website, and seemed so close to the court that when the defendants themselves asked the court for the very ruling made against them, the court told them that they could only get the copy directly from BREIN.

Of course, after all this happened, a second problem cropped up. Swedish authorities did an investigation and came to the conclusion -- as the four defendants had said all along -- that those four guys did not actually own The Pirate Bay. Instead, it was a company called Reservella, information that came out to the public after the attempt by GGF to buy The Pirate Bay (which has since collapsed).

BREIN wasted little time in adding Reservella to its lawsuits... but then did something strange. It came up with a credit report that purports to prove that one of the four defendants, Fredrik Neij, is the CEO and a director of Reservella. However, there were some oddities in that credit report, and Peter Sunde (one of the other defendants, better known as brokep) began investigating and has rather detailed evidence that the entire credit report is a fake. Almost none of the information on the report checks out, and the companies listed -- including Experian, who supposedly supplied the credit report, claim that they have no record of this particular credit report at all.

Sunde is now filing criminal charges against BREIN and its boss Tim Kuik, claiming that they forged a document and used it for fraud (trying to get money out of these four defendants). As Sunde notes, such charges seem to be far more serious than inducing copyright infringement. The evidence that Sunde lays out certainly looks convincing that the document is fake, but what's still not clear is how BREIN got the document, and whether it was responsible for creating the document, or if it was merely convinced that the fake document was real from someone else.

Still, it doesn't look good for BREIN to be caught using what appear to be faked documents in its lawsuit.

Filed Under: brein, counterfeit, forgery, fraud, frederik neij, netherlands, peter sunde, tim kuik
Companies: brein