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BREIN review 2014 and preview 2015

Gepubliceerd op 09/03/2015 om 14:34 | Link

BREIN represents authors, performers, producers, publishers and distributors of music, film, series, books and games in collective enforcement action against unauthorised access or distribution of copyright protected works.

BREIN's strategy is aimed at the supply side, i.e. sites that make or facilitate structural infringement and the various intermediaries used by such sites or their users. If a site does not comply then its hosting provider is requested to disconnect. If the site is in a foreign country where hosting providers do not cooperate then BREIN requests access providers to block access. The court of appeal rejected blocking in January 2014. BREIN appealed to the Supreme Court which is expected to rule around mid 2015. Next to sites, hosting providers and access providers, BREIN also works with payment processors and advertisers in order to interrupt any money flow to the sites. With respect to the demand side, consumers, BREIN promotes the establishment of programs that focus on education and awareness.

Last year BREIN took down 362 rogue sites in 2014 amongst which 148 cyberlocker link sites, 7 cyberlockers, 98 bittorrent sites, 80 streaming sites, 21 usenet link sites and 6 sites offering illegal physical media instead of files. With a few exceptions all sites operated anonymously. In general they did not react and were taken down by their respective hosting providers. Most sites concern all kinds of content, music, audiovisual, books and games, with only a few specialising in a specific kind of content. In 40% of the sites video was (also) involved, 35% (also) books and games and 25% (also) music.
 
Although the Netherlands remains a preferred haven for sites because of its excellent internet infrastructure and low pricing, it is being avoided increasingly by rogue sites offering unauthorised access to entertainment content with the exception of cyberlockers. The annual number of sites taken down by BREIN has decreased over the past few years from around 700 to just over 350. The importance of blocking access to rogue sites by Dutch access providers is increasing because such sites more often are hosted in foreign countries where hosting provider cooperation is slow or non-existent.
 
The blocking of The Pirate Bay that took place from January 2012  led to a decrease in Dutch traffic to the site of well over 80% until it was rejected by the Appeal Court in January 2014 just prior to the European Court approving blocking. BREIN appealed to the Supreme Court which is expected to rule mid 2015. BREIN intends to expand a positive ruling to other popular rogue sites.
 
As mentioned, the Netherlands still is used relatively often as haven for so-called cyberlockers. These are services that like to compare themselves to cloud storage services or file-hosters but in fact are aimed at mass distribution of popular -but unauthorised- files with film, series, music, books and games. They do, for example, not charge for storage but rather for download speed. Next to bittorrent sites and usenet services, cyberlockers belong to the three most important sources for unauthorised content.
 
Early this year BREIN began to take down popcorn time sites and related torrent sites if hosted in the Netherlands or operated by Dutch residents. If possible a text is posted on the site referring to Thecontentmap.nl which lists legal platforms. In cases where sites are hosted abroad, blocking shall have to be part of the solution, not only for the popcorn sites themselves but also for the torrent sites used by the software. Since the beginning of 2015 six popcorn time sites have been taken down as well as one alarmingly fast and easy high quality alternative named Nachotime.io. These actions are reported in the national press due to the high popularity of these illegal services.
 
Last year Google removed more than 4.4 million search results reported by BREIN because they led to unauthorised content. 62% of this delisting concerned music, 24% video and 14% books and games. The BREIN title database used for this exercise consists for 60% out of books and games, 37.5% music and 2.5% video. Google deranking, the pushing down of rogue sites regarding which many search results are removed, is reported to lead to a significant  decrease in traffic to such sites.
At the specific request of right holders also well over 21,000 files were made inaccessible by cyberlockers and more than 1,600 at YouTube.
 
In addition 5,132 interventions were carried out on 'auction sites' removing a multitude of advertisements for illegal recorded media (eg. discs). This concerns mostly video, books and games. The interest in illegal music on physical media has decreased significantly, although BREIN seized 3,500 illegal vinyl LPs at a record fair in what may be the beginning of a new trend. In February 2015 a market vendor was arrested selling illegal copies on DVD of films that were still in the cinema, 1500 DVDs were seized as well as 200 CDs of new albums.
 
In total 417 investigations were carried out in 2014 of which 356 concerned online supply of files, 32 online trade in physical media and 29 off line trade in physical media.
 
BREIN takes civil action in case site operators can be identified and refuse to settle. In very urgent cases BREIN obtains an ex-parte court order with penalty sum. 39 cease & desist undertakings were obtained from site operators and traders. In 5 cases ex-parte orders were obtained, against the operator of a Facebook page, a site operator, a large scale uploader, a trader on auction site Marktplaats and the owner of a copyshop. All those cases subsequently were settled as well.
 
Pending are proceedings on the merits against a commercial usenet provider and a supplier of pre-programmed mediaplayers with respect to their liability for illegal supply and use. With respect to the usenet provider the appeal court issued a preliminary ruling that the provider must have a fast and effective NTD procedure and take additional measures the nature of which remains to be determined. Verdict is expected mid 2015. The proceedings against the supplier of the pre-programmed mediaplayer will be heard in the second quarter. As mentioned also the blocking proceeding about The Pirate Bay is pending before the Supreme Court with a ruling expected mid 2015.
 
Very little criminal enforcement against Intellectual Property fraud happens in the Netherlands, in particular illegal supply online. Not only enforcement authorities but also suspects appeal to the Prosecution Directive that states that large scale piracy primarily is a matter for right holders themselves. The public prosecution was ruled inadmissible in the prosecution of a uploader of 5,000 books because he did not earn money and it was a first time offence. In the meantime BREIN is pursuing the matter civilly.
 
Talks with the public prosecution and government have not yet led to more flexible rules for criminal investigation and prosecution. BREIN also is looking for entrances to Dutch criminal enforcement through Europol and Interpol.
 
At the beginning of 2015 the long awaited hearing and ruling in the Masterbox case dating from 2010 took place. This concerned the manufacture and distribution of monthly DVD boxes with the most recent films, series and music. Four persons were convicted of participation in a criminal organisation committing professional copyright infringement. Their sentences varied from 12 to 15 months imprisonment of which 6 conditional. €80,000 in cash has been forfeited. In addition the prosecution intends to recoup €9 million in proceeds of crime.
 
The court rejected the allegation by the perpetrators that the prosecution did insufficient investigation and relied too much on BREIN. The prosecution had been declared inadmissible for that reason in another case but not this time.
 
Last but not least, last year saw the European court ruling against the policy of the Dutch government that allowed downloading from an illegal source under the private copying exception. In subsequent Parliamentary debate about how to enforce against illegal downloading the minister of Justice agreed to take stock of voluntary agreements between right holders and ISP's aimed at educating consumers that infringe or threaten to infringe copyright, with a view to possible implementation in the Netherlands.

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