BREIN Overview 2016 and Preview 2017Gepubliceerd op 03/02/2017 om 16:42 | Link
Our motto is Legal Offer, Awareness and Enforcement
The starting-point of collective enforcement by BREIN remains that legal offer, both free and against payment, needs the support of enforcement against illegal offer competition. This is the more stringent in the online environment. Practice proves that this is still necessary, when everything that is illegally on offer is also legally available online. After all, “because it’s for free” is the major reason for illegal use, followed at some distance by “earlier online availability”.
Enforcement therefore is not only essential to creation and production, but also to online and offline distribution and further investment in their innovation. Next to competitive legal offer and consumer information, enforcement is necessary to render and keep illegal offer and its uses under control.
Enforcement Strategy Summarized
The purpose of enforcement is interruption of illegal offer and its use. BREIN stands for a ‘full spectrum’ approach with all references: sites/services; uploaders; hosting providers; access providers; payment services; advertisers and agencies / networks; search engines; end users/ consumers.
Summarizing, the enforcement strategy of BREIN focuses on compelling online services to comply with copyright law, to assist in this and to meet their social due diligence duty upon doing so. This means for instance that next to an effective NTD they also have to filter in a preventive manner. The illegal activities must be ceased and prevented. If not, they have to be taken down by their hosting provider while identifying the site owners, or, if this is not effective either, access providers must be compelled to block access to their site. On this matter the BREIN vs Ziggo blocking case regarding The Pirate Bay is pending before the Dutch Supreme Court and the European Court of Justice (CJEU) a decision of which is expected in 2017.
Furthermore, BREIN expanded the tackling of illegal uploaders. Their detection has been partly automated. In the approach ex parte court orders are also used in serious cases. Offenders will be granted the option of a civil law settlement, i.e. a ‘fine’ (compensation of costs and losses) for the past and a cease-and-desist declaration with penalty for the future. The sums of the settlements run into thousands and tens of thousands of Euros and have both a repressive and a preventive effect.
BREIN also asks, or if necessary demands, assistance of other more or less neutral intermediaries and actors such as search engines (e.g. Google), social media (e.g. Facebook), UUC sites (e.g. YouTube), reverse proxies (e.g. Cloudflare), VPN services, payment services and advertisers/adnetworks. This does not always and everywhere go without any legal challenges.
As to intermediaries which are considered neutral by law, the approach of BREIN also is that next to effective NTD additional measures like specific filtering obligations can be required. In this sense the EUCJ also found in UPC Telekabel Wien and the Amsterdam Court of Appeal in BREIN vs NSE (it should be noted in this that BREIN does not share the conclusion that the ceased service of NSE was neutral, cassation appeal is being considered). Furthermore the European Commission specified in the proposed Directive on Copyright in the Digital Single Market that neutral UUC sites can also be demanded to use ‘content recognition technology’ (filtering), whereas active UUC sites need a license from the right owners.
Finally, BREIN also works with targeted information of infringing end users. This involves ‘copyright alerts’ to accounts on which infringement been established. These then will be transmitted by consumer access providers to the subscribers in question, whereat the identity of the infringers is not revealed to third parties.
BREIN’s collective enforcement is of a civil law nature. The approach is a mosaic of measures which are supported by law and a case law framework. In this BREIN always looks at subsidiarity and proportionality of the measures it claims. Where necessary, BREIN continues to build the case law framework through court cases, as it is the framework within which its enforcement takes place.
Removal by Hosting Providers and Blocking by Access Providers
Cooperation of hosting providers through the NTD code of conduct is in principle satisfactory, save several notorious exceptions, so-called bulletproof hosters, against whom actions are being prepared. Dutch access providers, however, oppose blocking despite this being allowed almost everywhere else in Europe. On this matter BREIN instituted cassation proceedings before the Supreme Court (SC), which asked the highest European court (CJEU) for a preliminary ruling late 2015. The grounds on which blocking was dismissed on appeal, however, have already been quashed by the SC. The question presented to the CJEU is whether the torrent site The Pirate Bay infringes, either directly or indirectly, and whether this has any relevance for blocking. The case was heard late October and the AG will issue an opinion on 8 February 2017. Usually a decision will follow about three months later. BREIN expects blocking to be allowed. Next the SC will render a decision in the TPB case. Blocking claims regarding other popular illegal sites will be filed as soon as possible.
Approach of all kind of Illegal Services and Contact Data Release by Intermediaries
Large-scale copyright infringement takes place in particular through torrent sites and trackers, cyber-lockers and streaming/download link sites, usenet and nzb-link and spot sites. This concerns both streaming and downloading and in case of music it progressively concerns ‘stream ripping’ of YouTube specifically. BREIN will take action if stream ripping services would choose the Netherlands as home-base. Illegal services are controlled almost exclusively anonymously and they also try to anonymize their users. Furthermore, Facebook pages frequently play a key-part in this.
And so it is important to be able to identify the responsible persons in order to hold them liable. Sometimes this can be done through digital tracking but often the cooperation of internet intermediaries is required. Although case law of the Supreme Court in Lycos vs. Pessers, assisted by BREIN at the time, constitutes the basis of a voluntary balance of convenience for the release of identifying data, they are not always released without court order. BREIN litigates on this matter and already obtained such an order inter alia against Google. The court also found that consumer access providers like Ziggo should in principle release identifying data of infringing customers. These court actions are foreseen for 2017 as well, if necessary also against YouTube and Facebook.
Regarding the offer of illegal physical copies websites are also taken down, managers addressed and ads are removed from offer-and-demand (auction) sites such as Marktplaats in particular. This also involves release of identifying data, of course.
Furthermore, proceedings are pending of BREIN versus a provider of media players with software that automatically links to illegal content providers. On this matter the CJEU was asked for a ruling, specifically whether this involves direct infringement by the seller and whether streaming from illegal sources is allowed, or not. The opinion of the Advocate-General (AG) is positive, the decision of the CJEU is expected at the end of the first quarter of 2017. Other providers who mushroomed pending the proceedings received warning letters and were informed about the opinion. They have a choice of ceasing their sales now in order to economize on costs and damages.
A lot of these providers started to provide collective subscriptions through IPTV in the meantime. They do so through links to illegal sources, i.e. ripped IPTV channels. It results from the decision in GS Media of the EUCJ that commercial providers of links should check their sources. Some providers continued despite the warning letter of BREIN and are sued. This will be continued in 2017.
BREIN uses next to digital detection for the identification of first and/or major illegal Dutch uploaders, special software to collect IP addresses of such uploaders. The associated contact data then should be claimed from the access providers in question. They specified that they will require a court order for this despite applicable case law. Court proceedings on this matter are foreseen for 2017. The publicity around this system as required by the Dutch Personal Data Authority, as also settlements for sums of thousands to tens of thousands Euros deterred many notorious uploaders.
Furthermore, BREIN continues its investigation through digital investigation. By this already several dozens of major uploaders have been identified and addressed. It concerns uploaders of music, books, films, series and games to cyber-lockers, Facebook, usenet and torrent sites. In this, dependent on the case, ex parte court orders with penalty are frequently used.
BREIN claims from illegal uploaders a cease-and-desist declaration with penalty for the future and a settlement sum for costs and losses for the past.
In the meantime, BREIN also addresses persons who willingly and knowingly upload unauthorized Dutch content to YouTube. Said uploaders usually open a channel. Although it is not difficult to have this removed by YouTube, the uploaders often return after some time or continue their activities elsewhere. That is why BREIN tries to retrieve their identity. If this is not possible through digital investigation, then the release of identifying data will be requested, and if necessary claimed from YouTube.
The odd party out are the so-called ‘fan-subbers’, i.e. unofficial subtitlers. BREIN successfully addressed them to cease and desist from creating and uploading subtitles for illegally uploaded films and series. This approach was adhered to by the Minister of Justice in reply to questions of Parliament. Next the subbers instituted proceedings against BREIN through crowd-funding under the name of ‘Stichting Laat Ondertitels Vrij’ (Foundation Set Subtitles Free) to obtain a court declaration that they are allowed – outside the legal regulations for copyright exemptions – to create and distribute subtitles for legally available content. The decision of the Amsterdam District Court is expected in the first quarter of 2017.
Search Results, Links and Files
BREIN reports illegal search results to Google regarding titles provided by right owners. BREIN scans the most popular illegal sites for this. Google does not only remove search results for illegal content, but also pushes sites back from which a lot of results are deleted. With over 2.5 million notifications in 2016 BREIN has crossed an overall total of 15 million deleted search results. By this BREIN ranks high among international notifiers. As a result illegal content for these titles is not displayed directly at the top of the search results.
At the request and if possible BREIN also assists in incidental removal of links and/or files of individual copyrighted works on specific services, including also YouTube. This is not done pro-actively, because right owners also do grant licenses to YouTube. Right owners are advised to create an account themselves, to allow them to use the ContentID system by which next to ‘ take down’ also ‘stay down’ can be effected. To achieve this, reference material must be provided and proof of the identity of the copyright owner or his representative.
Payment Services and Advertisers
Next to major illegal sites having a revenue model, usually through advertising income, there are also smaller sites which ask for so-called ‘donations’, i.e. financial contributions. As regards identification of liable persons/legal entities and/or ceasing their services BREIN therefore addresses payment services next to advertisers and their intermediaries. The ‘follow-the-money’ principle applies to this, on the one hand, and it interrupts money flows to illegal sites on the other hand. Cooperation is good in this respect and as a result major illegal sites have fled to a ‘safe’ country abroad. The fact that hosting providers in such countries do not duly cooperate stresses the need for blocking.
Infringing End Users
As to the demand side of illegality, the infringing end users and consumers of illegal content, BREIN is an advocate of information through so-called ‘copyright alerts’ which guide consumers in the right direction. For this, access providers send emails to customers through whose account infringement took place based on IP addresses notified by or on behalf of right owners. The identity of the account holder is not revealed in this. This system is used in the United Kingdom. The Dutch Personal Data Authority specified that it is desirable to come to an understanding on the processing of notifications, since in principle they concern criminal data. Discussion of this topic amongst stakeholders was referred to ECP.nl (a joint platform of government/administration, companies and organisations for the advancement online society).
A warning system can contribute to compliance and thus prevent unsuspecting infringing consumers from being faced with damage claims of individual right owners. If compliance increases in general then the likelihood increases that only persistent infringers are addressed.
Dutch and European Legislators
Finally, BREIN also gives opinions and advices regarding the enforcement of intellectual property to authorities in the Netherlands and the European Union (EU). In the EU, modernization of copyright law takes place inter alia in the proposed Directive Copyright in the Digital Single Market. BREIN gave input on the enforcement aspects of the proposal which seem to be in line with the case law of cases instituted by inter alia BREIN, in particular the use of ‘content recognition’ technology to remove and prevent infringing uploads (‘take down and stay down’). Furthermore, plans are expected on the short term of the European Commission (EC) regarding review of the Enforcement Directive. For this BREIN also participated in the series of preliminary consultations and it will give input on the plans as soon as they are known.
Last year BREIN got a new board with a well-balanced composition of makers and producers. The working fields will stay music, film and series, books, video and games. The board presently holds (representatives of) composers, textwriters, artists, photographers, scenarists, authors, publishers, music and film producers and broadcast organizations.
BREIN carried out the following numbers of enforcement actions in 2016:
• 284 investigations completed
• 231 illegal sites/services removed
• 26 major uploaders addressed
• 18 Facebook groups removed
• 2,559,525 search results deleted
• 4159 illegal content ads deleted
Highlights of 2016
Sites and Services
• In 2016, BREIN took down 231 sites/services. In most cases once cooperation of the Dutch hosting providers was requested. Almost all of these sites are managed anonymously. The actions concerned inter alia 84 cyberlocker link sites and 63 streaming sites. Furthermore inter alia 34 torrent sites were taken down.
• An uploader and operator of a usenet site settled with BREIN for a sum of 7500 EUR after an ex parte order. The site provided nzb links to films, series, music, books and games on usenet. After the CJEU’s GS Media decision this involves direct infringement. The operator himself also uploaded illegal content on usenet.
• Where necessary, BREIN claims identifying data from customers of hosting providers. In case of co-location in the Netherlands also of foreign hosting providers. A hoster established in the United Kingdom provided customer data regarding three illegal link sites for a cyberlocker.
• After investigation by the Ukrainian police in cooperation with the FBI the ‘presumed’ operator of the world’s largest and most lucrative illegal bittorrent site Kickasstorrents (KAT) was arrested in Poland. The site stopped and, later, a number of other major actors in the illegal bit torrent scene did so too. The complaint states inter alia advertising income to the amount of two hundred thousand from a Dutch online advertising company.
• The largest Dutch usenet site Dutplanet went offline after BREIN summoned the owner to answer questions about his activities under oath in a preliminary witness hearing. The site had over 200,000 users and was considered the successor of FTD which closed its doors after the court found its activities unlawful. In the meantime the owner is presumed to have left the country.
• After being summoned by BREIN a music streaming site located at a Dutch bulletproof hoster closed off its content to a large part of the world and was forced to contact licensing parties.
• In GS Media vs. Sanoma the CJEU finds that a commercial hyper-linker infringes unless he verifies beforehand whether the file which is linked to was posted with the consent of the right owner. A non-commercial hyper-linker only infringes, if he knows or should know that the content was not posted with consent on the internet. In both cases the right owner must be able to use NTD.
• Media players with add-ons to illegal sites and content infringe according to the advice of the Advocate-General (AG) with the highest European court (CJEU) in BREIN vs Filmspeler following the decision in GS Media. The AG also concluded that streaming from illegal sources does not involve lawful use and therefore does not fall under the exemption for temporary technical copies. The decision of the CJEU is expected at the end of the first quarter of 2017.
• BREIN informed stubborn providers of such pre-programmed players about the AG’s opinion in BREIN vs Filmspeler so they are aware that they expose themselves to recovery of losses and costs. The later they stop the more it will cost.
• Following the CJEU decision in GS Media, BREIN also addressed dealers of links to ripped IPTV channels. Upon doing so a writ of summons was served upon one of the major dealers of both pre-programmed players and links to ripped IPTV channels. This dealer has stopped in the meantime and settlement negotiations are being held. Other writs of summons are being prepared.
• The Appeal Court of Amsterdam found that a usenet provider is in principle not liable for infringement, but must have effective Notice & Take Down in any case, whereat the processing of notices should at least keep pace with the increase of illegal uploads. Seeing that in the meantime the provider has stopped his trade, the Appeal Court did not allow continuation of the proceedings regarding additional measures which could also be required. BREIN sees the recognition that a provider has the responsibility to counter illegality as a moral victory but is considering possible cassation appeal. The provider copied content and made this available on his own servers to users who paid for access through a subscription, precisely because usenet is a hotbed of illegality.
• The CJEU heard the parties in BREIN vs Ziggo regarding blocking of The Pirate Bay (TPB). Emphasis was on the impact of the recent CJEU decision in GS Media – in which it was ruled that commercial hyperlinking to illegal content is infringement – the question is whether TPB itself infringes or that only its users do so. Most parties find that TPB infringes and all the parties – save the ISPs – agree that blocking is called for regardless of the answer to said question. The AG will issue his opinion on 8 February, usually a decision follows some three months later.
• Another interesting decision of the EUCJ is McFadden. In this the CJEU finds that the manager of an open wifi network can be compelled to secure said network with a password and to require users to identify themselves in order to counter abuse. This may have consequences for inter alia VPN networks used for anonymous infringing.
• At the request of BREIN Facebook closed down four Facebook groups, in which about 6000 members ‘swapped’ orchestra tapes on a large scale. In fact, this concerned illegal copies stored in cyberlockers.
• Facebook also closed down at the request of BREIN nine groups of which several thousands of members swapped infringing music files. On the pages links were posted to illegal files.
• BREIN further dismantled a secret Facebook group for the exchange of illegal e-books. The eight so-called ‘libraries’ linked to it have been eliminated and emptied. The parties settled for a sum of 7500 EUR plus cease-and-desist undertaking with penalty.
• During the interventions at Marktplaats -4159 in 2016- ads for illegal content are deleted. Where necessary, further investigation follows.
• BREIN obtained an ex parte injunction with penalty to the amount of 1000 EUR a day against a dealer who offered through Marktplaats from Turkey illegal copies of series and games in the Netherlands.
• A repeat offender dealing in illegal DVDs who was caught by BREIN paid a settlement sum of 9,000 EUR. The man also settled his criminal case with the Public Prosecutor for a sum of several thousands of Euros.
• BREIN obtained an ex parte injunction against a dealer of e-readers on which he copied thousands of illegal e-books. He relinquished his stock and settled for 3000 EUR plus cease-and-desist undertakikng with penalty.
• A dealer in illegal R4 cards with games settled for a sum of 15,000 EUR and a cease-and-desist undertaking with penalty after BREIN had obtained an ex parte order against him.
• A total of 26 uploaders were dealt with. Illegal uploaders get the option to settle, in that case they pay compensation for the past and sign a cease-and-desist undertaking with penalty for the future. In particularly urgent cases BREIN first obtains an ex parte order from the court and next the infringer has to cease immediately on penalty of a civil fine. In 2016, BREIN obtained a total of 14 ex parte orders against illegal uploaders and providers.
• The Personal Data Authority approved BREIN’s system for the collection and processing of IP addresses of first and/or major uploaders.
• A bittorrent uploader of two TV series caught with BREIN’s new software settled for a sum of 4800 EUR, i.e. 400 EUR for each episode. This sum is based on German practice.
• BREIN has broken up a group of illegal bittorrent uploaders who were active inter alia on The Pirate Bay, ExtraTorrent and Demonoid. They removed the torrents and settled for a total sum of 75,000 EUR, some of them for 15,000 EUR a person.
• A bittorrent uploader of music and film works settled with BREIN after an ex parte order for the sum of 3000 EUR plus a cease-and-desist declaration with penalty.
• A usenet uploader of film works against which BREIN obtained an ex parte order settled for a sum of 10,000 EUR plus cease-and-desist undertaking with penalty.
• A usenet ‘spotter’ and uploader of TV series settled for a sum of 7500 EUR plus cease-and-desist undertaking with penalty.
• A cyber-locker uploader of music against whom BREIN obtained an ex parte order settled for the sum of 7000 EUR plus a cease-and-desist undertaking with penalty.
• A usenet uploader of music against whom BREIN obtained an ex parte order with civil fine settled for a sum of 15,000 EUR plus cease-and-desist undertaking with penalty.
• On the basis of two ex parte orders BREIN settled for a sum of 60,000 EUR with eight uploaders of music albums, films, series and games and upon doing so also took down an illegal internet radio station. All of them signed a cease-and-desist undertaking with penalty. Upon compliance part of the settlement sum will be waived after some time by reason of personal circumstances. As to future web-casting they were referred to licensing by BumaStemra and Sena.
• BREIN also identified a young uploader who posted Dutch films on YouTube. He was lucky enough to only get a warning. On YouTube illegal uploaders should also be aware that BREIN will present them with a cease-and-desist undertaking with penalty.
• With two other uploaders of books and Dutch TV series respectively settlements were also reached after obtaining ex parte orders for compensation plus cease-and-desist undertaking with penalty.
• Where necessary, BREIN claims release of identifying data. Two usenet providers, including a reseller of subscriptions, were ordered by the court to reveal the personal data of two uploaders of over 2000 books. The court ruled that they should have released them at first request.
• Another reluctant reseller of usenet subscriptions was also ordered by the court to release identifying data of illegally uploading customers. He must organize his accounts in such manner that he can comply upon first request. The Dutch usenet provider the reseller worked for apparently sold his servers – after a court order for release against usenet providers earlier this year – to a company in San Marino which did not want to cooperate. The court found that be that as it may, this does not relieve the reseller from his responsibility to be able to identify customers who upload illegally.
Removal of illegal search results, links and files
• BREIN notified over 2,5 million search results of illegal content to Google. By this the total number of deleted search results since the start results in over 15 million. Being a national organization of a small country BREIN ranks high among the world’s largest notifiers.
• Furthermore, BREIN also made incidental notifications to services (inter alia YouTube) at the request of right owners regarding unauthorized links or files. They amounted to just over 18,000 this year.
Warnings to customers of illegal service
• Once BREIN had obtained an ex parte order against a cyberlocker uploader of e-books who distributed through forums, it was agreed to inform all customers by email about the illegal downloading or sharing of e-books. BREIN received a positive response to this and the sharing of unauthorized copies at the forums in question came to an almost complete stand-still.