donderdag 13-06-2024

Annual report 2023

The BREIN Foundation provides collective protection of copyright and neighbouring rights for creators, performing artists and the creative media industry such as producers, publishers, broadcasters, distributors and platforms. Affiliated to BREIN are around 30 industry and collective management organisations and their members, together several thousand companies and tens of thousands of creators relating to music, films, series, books, writings, images and games.

“We see that in general, there is growing government attention to enforcement against online abuse. This is obviously due to the social damage caused by excesses on social media. Neutral intermediaries are expected to take responsibility for that. That is where BREIN’s case law gives direction. In terms of large-scale infringement, we saw FIOD (Fiscal Intelligence and Investigation Police) and the Public Prosecutor’s Office take their largest ever criminal action against an illegal IPTV network in response to a report by BREIN. Furthermore, we again have new blocking by access providers and Google of access to international illegal sites. This is expanding all the time. More and more illegal ‘private torrent trackers’ and ‘usenet communities’ are taken down. While the Dutch Supreme Court ruled in a case from 2011 that a usenet provider was not itself infringing at the time, such providers today have to have an effective Notice & Take Down system and take additional measures against illegal offerings.”

BREIN’s approach targets all forms of illegal supply regardless of the technology used to do so. For example, bittorrent, cyberlockers, usenet, IPTV and websites or social media that link to illegal sources, as well as streamripping sites and illegal supply on auction (or ‘supply and demand’) sites of files and physical carriers including vinyl.[i]

Bittorrent remains a popular protocol for illegal use of all types of content but streaming and download link sites for cyberlockers with music and video are also finding a lot of demand. For audiovisual content and live sports, illegal IPTV subscriptions with Video-On-Demand (VOD) are by far the biggest culprit. Bittorrent, streaming and link sites generate revenue mainly through advertising, although they also earn from the sale of subscriptions and VPN. Cyberlockers offer premium subscriptions for faster downloads, link sites make content discoverable. Subscription sales are also the main source of income for commercial Usenet with all types of content, NZB link sites and spotweb make the best quality illegal content easier to find and download. In addition, actions also take place against illegal Facebook groups and ‘open directories’, for example.

For enforcement, BREIN first of all looks at the providers, the sites and uploaders that act as sources, and then also at intermediaries such as hosting providers and access providers as well as payment services, advertisers and search engines.

Neutral intermediaries should also help to counter illegal use. Most significant here is the dynamic blocking by access providers of access to popular illegal sites. In 2023 this has been extended to the nine most popular sites, seven illegal bittorrent sites and two clusters of streaming sites, as well as the main proxies and mirrors for all those sites, at any given time always around 200 domains. BREIN keeps track of this and periodically sends updates to access providers. Because of the 2021 ‘one-for-all’ covenant, a court order against one of the major access providers is also enforced by the others.[ii] Separately, Google also carries out these updates by removing all references to these websites from its search results at BREIN’s request.

N u m b e r s

BREIN carried out the following numbers of enforcement actions in 2023. All actions concern music, video (films and series), books, writings, images and games, unless otherwise stated.

615 investigations completed, 59 ongoing

610 illegal sites/services removed

9 (clusters of) sites and 423 unique proxies/mirrors dynamically blocked on IP and/or DNS [iii]

Google delisted 256 unique domains related to the blocked sites [iv]

501 proxies/mirrors stopped[v]

14 illegal traders IPTV/VOD subscriptions stopped; 11 ongoing investigations

34 IPTV ads removed by Google (started in Q4) [vi]

14 streaming sites taken offline

23 major uploaders, administrators and/or scripters investigated and stopped

132,455 Google search results removed [vii]

3,739 interventions involving the removal of online ads for illegal copies

41 settlements, including 12 ‘knock & talks’ [viii]

2 online cases involving physical media were settled

3 checks carried out at record fairs, 49 records seized [ix]

Further decline in notifications to Google

There has been a large drop in the number of Google search results for illegal material reported by BREIN since access providers and Google started blocking access to illegal sites following BREIN’s blocking orders. The ‘delisting’ of entire websites carried out by Google equals millions of search results that are no longer visible in the search engine and therefore no longer have to be reported by BREIN. On balance, the number of permanently deleted Google search results has increased to many tens of millions. Also see footnote (iv).

Decline reporting scam sites

Of the queries and reports BREIN received from authors, publishers and producers, a total of only 27 concerned so-called scam sites. This is more than last year but still a significant decrease compared to 2021 when more than 100 scam sites were reported to ScamAdviser. BREIN suspects this is due to declining visits to such sites for infringing offerings. ‘Phishing’ takes place on scam sites, i.e. consumers are lured with the empty promise of access to the latest content in order to obtain their payment details.

H i g h l i g h t s [x]

Criminal

“The policy of the Dutch government is that rights holders are primarily responsible for the enforcement of their Intellectual Property, which is therefore mainly of a civil law nature. For this purpose, rights holders have set up the BREIN foundation. Criminal investigation and prosecution is used as a last resort. Agreements have been made with the Public Prosecutor’s Office and the FIOD (Fiscal Intelligence and Investigation Police) about which types of cases qualify for criminal action. Naturally, no announcements will be made about ongoing investigations.”

Biggest ever criminal action against online piracy, hundreds of thousands of TVs blacked out

Following a report by BREIN, the FIOD and the Public Prosecutor’s Office (OM) carried out a criminal investigation including a datacenter in Den Helder in connection with a large internationally operating illegal IPTV network that structurally infringes copyrights and neighbouring rights of BREIN’s affiliates and other rights holders. Business premises and homes were searched, cars, computers, bank accounts and cash were seized and several people were arrested. Hundreds of thousands of televisions at illegal subscribers’ homes suddenly went dark.

This is the largest criminal investigation by FIOD and the Public Prosecutor’s Office into digital piracy in the Netherlands ever. Illegal IPTV is the most serious threat to legal offerings of films, series, television and sports broadcasts. This case involves a criminal organisation behind the large-scale sale of more than 1 million IPTV subscriptions in the Netherlands and other countries. Subscribers were estimated to pay more than 64 million euros per year. As households on average have 1.9 legal subscriptions that cost an average of 8.49 euros per month, the estimated damage amounts to more than 193 million per year. Incidentally, besides online transactions, many cash sales also took place in satellite shops.

BREIN sent the Public Prosecutor’s Office statements of infringing acts and filed charges. In addition, BREIN coordinates filing charges by rights holders. Meanwhile, due to personal circumstances, the judge released the main suspect pending trial.

Criminal enforcement IPTV seller Belgium

BREIN had been investigating an illegal IPTV provider operating in both the Dutch and Belgian markets for some time. Shortly after an unanswered request by BREIN to a bank in Belgium for the release of name, address and residence details (NAW) relating to this infringer, the Belgian police contacted BREIN following a report by the relevant bank about unusual transactions at the same provider. In consultation with the Belgian authorities, BREIN filed a report and handed over the evidence collected. Confronted with this, the suspect made a confession.

Civil law

Blocking orders for nine clusters of illegal sites and hundreds of proxies and mirrors, further actions in preparation

In addition to the existing dynamic blocking orders for the seven most popular evidently illegal bittorrent sites, an order for two large clusters of illegal streaming sites was granted last year. All these injunctions also cover proxies and mirrors used to bypass blocking. At any given time, in addition to the sites themselves, around 200 domains for proxies and mirrors were blocked. BREIN monitors the changing composition of such domains and regularly sends updates to access providers and Google. Last year, 1,483 domains were reported, of which 423 were unique.

The blocked sites are all among the most popular illegal sources in the Netherlands and are also blocked in many other countries, which obviously affects their revenues. After being blocked, rarbg, one of the largest illegal torrent sites, threw in the towel last year due to “increased costs and inflation”, among other reasons. Earlier, the largest remaining popcorn-time ‘fork’ did the same due to ‘lack of enthusiasm’. The sites that served as illegal content providers before that were also blocked in several countries including the Netherlands.

In 2021, led by the Ministry of Justice and Security, a blocking covenant was signed between BREIN and Dutch access providers. This is a ‘one-for-all’ arrangement, a court order against one major access provider is voluntarily followed by other access providers. Access providers are summoned in rotation, defence is not mandatory but a default judgement is not allowed. This is also implemented by Google after notification by BREIN’s inhouse lawyer, the complete blocking of sites from search results significantly increases the effect of blocking.

Last year, the court ordered KPN to block two large illegal streaming platforms with 25 main domains and dozens of proxies and mirrors from its customers. KPN unsuccessfully defended against BREIN’s claim. It argued, among other things, that blocking is ineffective because websites remain available, the infringement continues and blocking can be circumvented. The court in preliminary relief proceedings did not follow this position. Blocking prevents access despite the fact that circumvention is possible. It also rejected the defence that the blocking of proxies and mirrors was too broad: KPN has been implementing blocking for several years now and this has not led to any problems in implementation. The websites in question are those with the same or almost identical content and for the duration that they are clearly infringing. Dutch case law and the covenant allow for a dynamic blocking order. It is neither effective nor proportionate if BREIN would have to go back to court for every new proxy or mirror. KPN has shown in the past that blocking orders can be implemented within an hour. The requested period of five days is therefore reasonable.

“Dutch visits to blocked sites decrease by more than three quarters. Research by Carnegie Mellon indicates an overall decrease in illegal use of 22% after blocking multiple sites and a 10% increase in legal use and even 24% among frequent users.” [xi]

Preparation for blocking actions internally by BREIN is extensive and labour-intensive, as is monitoring changes in the domains/IP addresses of the sites and their proxies and mirrors. The next blocking concerns the two very largest so-called ‘shadow libraries’ containing unauthorised copies of several tens of millions of books and scientific publications, which, incidentally, have also been used for AI training.

Actions against Dutch illegal BitTorrent sites

BitTorrent is still one of the most widely used protocols for illegal exchange of all kinds of popular content. Access is blocked to large international ‘public’ sites that, partly due to BREIN actions, have long since ceased to be hosted in the Netherlands. As already mentioned, due to these blockades, revenues for these kinds of sites decrease and a number of them have given up. In addition, BREIN is also going after ‘private trackers’ created and managed for and by Dutch users. The supply and membership of such a site generally amounts to several tens of thousands of torrents (links) and individuals.

“Over the past two years, multiple actions took place against both owners and uploaders of illegal bittorrent sites, as well as ‘scripters’ who often write and manage the software for multiple sites. As a result, the number of known private trackers has been greatly reduced.”

Based on information from previous actions, including against scripters of multiple sites, BREIN has again been able to identify a dozen uploaders and site owners. Settlements range from a few thousand to more than ten thousand euros. The name and address details of one of them was, at BREIN’s reasoned request, obtained from the bank where donations were deposited. A Dutch admin who was in the Czech Republic did not escape consequences either.

In addition, a repeat scripter was targeted. One of his customers preferred to pay a higher settlement rather than name his supplier but after it came online again, he was still the fall guy. His settlement became higher as a result. His father who was indirectly involved also signed a cease and desist declaration including a penalty clause.

Actions against illegal IPTV

First of all there was, as mentioned before, the major criminal action by FIOD and prosecutors against a large internationally operating illegal IPTV network following reports by BREIN. See above under “criminal law”. The importance of criminal action by the government against piracy cannot be underestimated.

In addition, last year BREIN again took action against a dozen or so providers of illegal IPTV subscriptions sold separately or together with media boxes. Since then, BREIN has shut down around 400 illegal sellers after the Court of Justice of the EU (CJEU) ruled in the BREIN v Film Player case that this type of sale constitutes infringement.

“Illegal IPTV is the biggest threat to audiovisual rights holders. Research by Bournemouth University shows that the use of illegal IPTV increased by 25% in the EU between 2018 and 2021 but fell by almost 6% in the Netherlands. Yet it still involves more than 1 million subscriptions, which is the highest rate in the EU, at 8.2% while the average is 4.5%.” [xii]

Illegal providers are identified and addressed by BREIN. Depending on the circumstances, an ex parte order can be obtained and an attachment levied. Providers are offered to settle by, among other things, signing a cease and desist declaration and reimbursement of costs.

Fines or, in case of a court order, periodic penalty payments usually amount to €5,000 to €25,000 per day(part) or infringement with ceilings ranging from €100,000 to €500,000. Out-of-court settlements generally amount to a few thousand to tens of thousands of euros. Retailers do not escape either. [xiii]

If no settlement can be agreed, the provider is summoned, claiming the full legal costs in addition to the investigation costs. For example, an illegal provider was previously ordered to pay BREIN €25,000 in costs and directors of a private limited company were also found personally liable.

In cases where there is evidence that an illegal provider made a lot of turnover, a number of rights holders often act as co-claimants in addition to BREIN so that damages can also be claimed. Then a higher amount can be settled. From this, BREIN’s costs are paid first; in practice, little or no money is left over after that.

Actions against illegal Usenet[xiv]

“The illegal Usenet is cracking under BREIN’s ongoing enforcement actions. Information from previous actions repeatedly leads to identification of other administrators and uploaders from illegal Usenet communities.”

Investigations by BREIN in recent years led to the tackling of dozens of administrators and large uploaders, including on spotweb, as well as so-called ‘NZB communities’ (indexing sites) that direct users to illegal content on the Usenet. Among others, a self-proclaimed untraceable administrator in Belgium was sued by BREIN. Settlements with those involved usually amounted to around ten thousand euros per individual and led to the identification of others involved. As a result, communities also stopped of their own accord and uploaders threw in the towel because the net was closing in.

This also further reduces the revenues of commercial usenet providers. Such Usenet providers sell access subscriptions for their servers on which content uploaded by users, usually without permission, is kept available for a long time. Their attractiveness had already declined significantly in recent years with the rise of legal streaming services, but the subscriptions remain popular due to the large amount of illegal content of not only films and series but also music, books and magazines on such servers.

Duty of care of commercial usenet providers

In the first quarter of 2023, the Dutch Supreme Court surprisingly ruled, given the facts, that the commercial usenet provider NSE was a neutral intermediary in 2011 that did not itself infringe. However, it must have an efficient NTD when it restarts as well as – as yet unspecified – additional measures to adequately combat infringement on its platform.[xv]

As is common knowledge, the Usenet was initially a discussion forum with newsgroups, but has become a cesspool of illegal content and porn since the advent of binaries that allow images and sound to be converted into text. As mentioned above, adequate anti-infringement action calls into question the revenue model, as it involves selling subscriptions to access Usenet servers on which that content is kept available for a long time. Thus, although the HR ruling rejects BREIN’s infringement claim in this case, it does not give commercial usenet providers cause for relief. Such providers, even if they can be considered neutral, must take effective anti-infringement measures to avoid their own liability.

Anonymous warnings to frequent bittorrent uploaders discontinued

BREIN wanted internet access providers, including Ziggo, to forward educational warnings to ‘frequent or long-term uploaders’ (FLU) whose IP addresses BREIN detected. In doing so, the infringers remained anonymous as no name and address details were requested for further enforcement and the IP addresses were deleted. The Ministry of Education, Culture and Science (OCW) provided funding to measure the effect of the ‘anonymous’ alerts after six months.

However, Ziggo refused to cooperate after some time. On appeal, the court briefly ruled that merely warning is not enforcement if by deleting the IP addresses BREIN cannot file a claim if the infringement does not stop after warning.[xvi] To check that, IP addresses and NAW must be recorded. BREIN decided not to appeal in cassation in view of costs and to fall back on the usual enforcement. This involves identifying infringers, if necessary with provision of name and address details by intermediaries, and addressing them by BREIN.

“Warning without taking the case directly to court is mild and should be possible. Ziggo’s stance ensures that infringing customers will face claims directly. Their costs will be recovered from the infringer.”

In total, BREIN sent 1,157 warnings to all access providers combined in one year. The project was suspended in early 2022 pending appeal and was finally discontinued at the end of 2023.

Ziggo must forward summons BREIN and hand over NAW

In addition to the above-mentioned refusal, Ziggo also refused to provide BREIN with the name and address of a subscriber with a publicly accessible open directory[xvii] containing several hundred illegal ebooks. On appeal, the court ruled that Ziggo must forward BREIN’s summons to its customer and provide its NAW to BREIN if it does not cease the infringement. [xviii]

Ziggo argued that its subscriber had its directory unknowingly open to the public and its provision of name and address details would not be allowed without a licence from the Data Protection Authority (AP) because it was criminal data. The court did not go along with this, ruling that by not setting a password in defiance of the instruction, the customer apparently took for granted that others could gain access. The court also ruled that the provision of data does not violate the purpose limitation requirement under the GDPR, Ziggo has a legitimate interest and can rely on it that the processing is necessary for the institution of legal proceedings.[xix] BREIN is also entitled to rely on this.

Incidentally, the court pointed out in its ruling that in light of the CJEU’s Mircom ruling[xx] , the GDPR or its Dutch implementing law (UAVG) does not preclude Ziggo from linking an IP address to the name and address details at BREIN’s request, regardless of whether it is criminal data.

“The court notes for the sake of completeness that it does not appear from the case-law of the CJEU that this interconnection of data constitutes processing of criminal data within the meaning of the GDPR.” [xxi]

Although the court ruled that requests by BREIN in future cases must be weighed separately by the intermediary, the ruling also led to immediate results at other major access providers, and open directories containing thousands to tens of thousands of ebooks went offline after being summoned by BREIN.

BREIN previously settled with several dozen administrators of open directories, which is a file or folder containing illegal files (usually illegal ebooks but in a few cases also films) that is open to other internet users and can be found in various ways. When BREIN can identify the administrator, it writes to him directly. Otherwise, his access provider is requested to forward the summons on the basis of the IP address used. In case of persistent infringement, a claim is submitted.

Incidentally, neutral intermediaries such as banks and hosting providers generally comply with BREIN’s reasoned requests for the release of NAW and possibly other identifying data, having since been granted several times by the courts.

Know-Your-Business-Customer (KYBC)

Because illegal platforms operate anonymously and do not respond adequately to summonses, BREIN approaches hosting providers, among others, not only with summonses to take the service offline but also to hand over identifying data. If refused, these will be claimed in court. These data are needed to hold the responsible parties liable and stop their illegal trade. In cases of illegal practices, the name and address details provided by a customer often turn out to be incorrect and no or insufficient effort has been made to verify them. In addition, hosting providers offer their services through foreign resellers (resellers) who make no effort to verify the identity of their customers.

The Digital Services Act (DSA) confirmed CJEU case-law that KYBC applies to online marketplaces but did not extend it to other intermediaries such as hosting providers. This does not mean that such data cannot still be claimed. After all, intermediaries have duties of care and should cooperate in countering infringement even if they are neutral, once again when they play a central role. BREIN prefers consultation with hosting/upstream providers in order to make workable agreements for both parties.

Miscellaneous

BREIN had several Facebook groups dedicated to illegal content, mainly music and ebooks, removed again last year. Through one profile, millions of ebooks were offered for sale for 2 to 5 euros. The culprit was identified through Marktplaats and stopped by BREIN. Among others, a provider of counterfeit CDs was also tackled on Marktplaats. In addition, a Dutch seller of counterfeit vinyl residing in Germany was tackled. Furthermore, a number of checks were carried out at CD and record fairs in consultation with organisers. All such cases are generally resolved by a settlement consisting of a cease and desist declaration with a penalty clause and compensation of costs made . Several .nl domains were reported by BREIN to SIDN and removed because of incorrect data registration and/or obvious illegality. In the fourth quarter, about 30 illegal IPTV ads were removed by Google after BREIN reported them. Following these reports, Google changed its advertising policy and it is no longer possible to advertise in the search engine with the search term ‘IPTV’.

Other news

Based on input from BREIN, the explenatory memorandum to the implementation act of the Digital Services Act (DSA) added the blocking covenant to the voluntary mechanisms and codes of conduct. It has also been clarified that applicable national or Union law may provide for a duty to remove illegal content even without the intervention of a competent authority. The ACM is designated as digital services coordinator. From consultations, it is clear that BREIN is expected to qualify for certification as a ’trusted flagger’ whose reports must be treated with priority.

The Stichting Domeinregistratie Nederland (SIDN) changed its policy at the end of 2023 so that it is no longer allowed to register a domain in the name of an intermediary. True identifying details must also be entered in the register by the registrant. With some regularity, BREIN sees .nl domains entirely focused on illegality. Most of these are registered in the name of intermediaries who then keep the ultimate domain name holder out of harm’s way. Such domains are now removed after being reported by BREIN.

In May 2023, the European Commission published its recommendation on combating online piracy of ‘live content’, especially but not exclusively sports.[xxii] BREIN actively participated in consultations with ‘stakeholders’ on this. Blocking is recommended as a remedy. In this regard, the Dutch government pointed the Commission to the blocking covenant between BREIN and Internet Access Providers as a ‘striking example’.

A preliminary agreement on a European AI law was reached in December last year. Among other things, it regulates that the Text and Data Mining (TDM) exception applies to AI, i.e. it is allowed unless the rights holder makes a machine-readable reservation. So do it is the motto. Also, providers of generative AI must publish a summary of what has been processed as training material -this may of course be copyrighted- and deep fakes must be identifiable as such.

An important question regarding generative AI is whether the exception for TDM applies indefinitely. If so, the use of protected work as training material for AI would be allowed under conditions. Professor Rosati of Stockholm University argues that the ’three-step test’ for copyright exceptions entails that TDM is not always allowed.[xxiii] What is decisive here is that generative AI can generate content that directly competes with or even completely replaces copyrighted works used for training.[xxiv]

Since 2012, BREIN has successfully used the ex parte injunction whereby a court order can be issued without the infringer or intermediary being heard by the court in particularly urgent cases.

“It is also notable that BREIN submitted no less than 69 ex parte injunction requests during the period 2012-2023, all of which were granted. While the conditions for granting them are strict and in almost all cases a revocation follows, BREIN is actually very successful in obtaining ex parte injunctions against infringers and especially intermediaries. On this basis, it can be seen that the ex parte injunction now lends itself only to very urgent cases of piracy.” [xxv]

Since 1 January 2020, it has been possible to recover damages in collective actions through the Mass Tort Claims Settlement Act (WAMCA). This also includes the prohibition, injunction and declaration-for-right actions that BREIN has been pursuing for years in its own name. Claims dealing with (infringements of) intellectual property and anti-counterfeiting take second place quantitatively and are almost all brought by BREIN. These are only proceedings on the merits and not claims in summary proceedings, which BREIN uses much more frequently. Last year, the court twice ruled in an interlocutory judgment that BREIN was admissible and appointed as exclusive advocate, giving rightholders the opportunity to opt out of the action via an ‘opt-out’. No use was made of this. See further also https://stichtingbrein.nl/wamca/

Footnotes

[i] The ratio between illegal use and missed sales is not 1 to 1 but, depending on the sector, can be estimated from 1 to 3 (i.e. every 3 illegal use moments lead to 1 missed legal use moment) to 1 to 5. From a historical perspective, it has been shown that in countries where there is legal supply but no enforcement, at least 80% of the market is in the hands of organised illegality.

[ii] https://www.tweedekamer.nl/kamerstukken/detail?id=2021D41853&did=2021D41853

[iii] The state of simultaneously blocked domains at any given time is around 200, namely 208 on 31/12/23. A total of 1483 domains were reported last year, of which 423 were unique. Blocking concerns a dynamic operation, i.e. BREIN monitors this and regularly sends updates for blocking or unblocking especially proxies and mirrors (see also note v). This is a labour-intensive exercise. Since 1 January 2018, it involves thousands of proxies/mirrors in dozens of updates. Changes to the several dozen blocked root domains, as well as some IP addresses, also occur but much less frequently.

[iv] BREIN’s inhouse lawyer also sends the updates to Google, which subsequently removes the reported domains from its search results. The difference between 423 unique domains blocked by the IAPs and 256 unique domains delisted by Google is because some of the blocked domains were reported to Google before (namely at the time they were first blocked by the IAPs).

[v] I.e. after summons BREIN. A proxy redirects to the original website via a different name/address. A mirror is a copy of the content of the original website. In practice, the difference between a proxy and a mirror cannot be seen but both are used to circumvent blockades.

[vi] In response to these reports, Google has changed its advertising policy and it is no longer possible to advertise on the search term ‘IPTV’.

[vii] Please note, BREIN only reports to Google regarding titles that are notified for it by rights holders. The number of reports is decreasing since the start of blocking illegal sites. Such blocking involves making many hundreds of thousands of search results inaccessible in each case. Cyberlockers and YouTube are only reported if requested by an affiliate in a concrete case, 167 and 63 cases respectively last year. Many rights holders report (also) via their own ‘vendors’ and, in the case of YouTube, licences are often granted.

[viii] Most BREIN cases involve stopping the infringement, usually taking the site, or infringement(s) offline, only in cases where the responsible party involved is identified can suit or litigation take place. A ‘knock & talk’ involves a home visit, often preceded by an ex parte order. A settlement consists of a declaration of abstention with a penalty and compensation for costs and possible damages.

[ix] These checks were carried out in consultation with the organisers and after warning the traders. So-called ‘usual suspects’ stayed away or traded only legal product.

[x] In view of privacy regulations, BREIN does not publish domain or company names and aliases or other data when it is traceable to natural persons.

[xi] See: “The effect of Piracy Website Blocking on Consumer Behavior“, Carnegie Mellon University, November 2015; “Website Blocking Revisited: The Effect Of The UK November 2014 Blocks On Consumer Behavior“, Carnegie Mellon University, April 2016.

[xii] A 2022 study by Bournemouth University concludes that in 2021, 8.2% of the Dutch population used illegal IPTV for an average of €5.35 per month, which is €68.7 million per year. The latest EUIPO report on online piracy in general concludes that it increased by 3.3% in 2022, with streaming being the most popular form of accessing illegal TV content at 58%. In addition, 32% takes place through downloading. https://www.euipo.europa.eu/en/publications/online-copyright-infringement-in-eu-2023

[xiii] Settlements take into account the other party’s ability to pay. They often involve a lump-sum payment part, an installment part and a conditional part that becomes due immediately in case of non-payment and recidivism. This unconditional part also depends on the circumstances of the case and in practice is many times higher than the conditional part.

[xiv] The usenet is a precursor to the internet and has been used for many years almost exclusively for the illegal sharing of protected content such as films, series, music, books and games. Content is uploaded to the Usenet where it is kept available mainly by commercial Usenet providers who sell access subscriptions. Spot web, indexing sites and usenet communities then share spots or nzb links that facilitate finding and downloading the files.

[xv] Supreme Court 27 January 2023 ECLI:NL:HR:2023:94 (BREIN Foundation/News-Service Europe).

[xvi] Arnhem-Leeuwarden Court of Appeal 11 October 2022, ECLI:NL:GHARL:2022:8676

[xvii] ‘Open directories’ are folders on someone’s computer or network that are not password protected. The files in the folder can then be downloaded by anyone. That such a folder is accidentally open is unlikely as the required software explicitly warns that the directory will be open if a username and password are not used. From a privacy point of view and possible damage claims, it is interesting that the usage history of the person concerned can be seen in the directory.

[xviii] Arnhem-Leeuwarden Court of Appeal 2 May 2023, ECLI:NL:GHARL:2023:3598

[xix] Respectively ex art. 6.1 (f) General Data Protection Regulation (AVG) and art. 32 (d) AVG Implementation Act (UAVG).

[xx] CJEU 17 June 2021 ECLI:EU:C:2021:492

[xxi] Recital 4.24 of the judgment, Arnhem-Leeuwarden Court of Appeal 2 May 2023, ECLI:NL:GHARL:2023:3598.

[xxii] https://digital-strategy.ec.europa.eu/en/library/recommendation-combating-online-piracy-sports-and-other-live-events

[xxiii] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4629528 In brief, the copyright exception for text and data mining (TDM) is subject to the conditions that in case of commercial purposes, permission of the rightholder is required and for non-commercial purposes use is allowed unless the rightholder has made a reservation. Also, there must always be lawful access, so illegal online offerings may not be used.

[xxiv] The ’three-step test’ known from international treaties provides that exceptions to copyright must satisfy three conditions, i.e. the exception is (i) valid only for special cases, (ii) not contrary to normal exploitation, (iii) not unreasonably prejudicial to the legitimate interests of the right holder. This test applies both to the legislator when making (national) law and to national courts in concrete cases.

[xxv] Thus Prof D.J.G. Visser and C.J.S Vrendenbarg, Leiden University, in ‘The ex parte order’ in the book ‘IP procedural law. Constantly in motion’.