BREIN Annual Report 2020
The BREIN foundation takes care of the collective protection of copyrights and related rights for makers, performing artists and the creative media industry, such as producers, publishers, broadcasters, distributors and platforms. Affiliated with BREIN are about thirty branch and collective management organizations and their members, representing overall several thousands of companies and tens of thousands of creators of music, films, series, literature, images and games.
BREIN’s approach focuses on all forms of illegal offers regardless of the technology used. For example, bittorrent, cyberlockers, usenet, IPTV and websites or social media linking to them, as well as streamripping sites and illegal offerings on auction sites. By far the most popular protocol for illegal use remains bittorrent for now, but streaming/download link sites for cyberlockers are also in high demand, as are illegal IPTV subscriptions with VOD for audiovisual content. Bittorrent and link sites generate revenue primarily with advertising, although revenue is also earned from the sale of VPN subscriptions. Cyberlockers offer premium subscriptions for faster downloads in addition to free accounts. Subscription sales are also the main source of revenue for commercial Usenet. Because of the Covid measures, there has been an increase in online use, both legal and illegal.
As to enforcement, BREIN looks first at the providers, the sites and uploaders that act as sources, and then also at intermediaries such as hosting providers and access providers but also payment services, advertisers and search engines. Neutral intermediaries should also help in the fight against illegal use. The blocking of access to the illegal bittorrent site The Pirate Bay has led to a drop of more than 95% in Dutch visitors. Now that it has finally been granted by the Dutch courts in 2020, BREIN is focusing on obtaining blocking of other popular illegal sites as well.
F i g u r e s
BREIN conducted the following numbers of enforcement actions in 2020. All actions relate to music, video (films and series), literature, images and games, save stated otherwise.
- 479 investigations completed and 183 still open
- 466 illegal sites/services removed
- 1 site (The Pirate Bay) and 180 TPB proxies/mirrors dynamically blocked on IP and DNS
- 338 TPB proxies discontinued their services
- 23 illegal traders of IPTV subscriptions (+VOD) stopped; 18 open investigations
- 33 illegal streaming sites taken down
- 18 Facebook groups with illegal offerings stopped
- 20 open directories with pirated ebooks taken offline (as of Q4)
- 1,145,133 illegal search results removed [i]
- 2370 interventions involving removal of online advertisements for illegal offerings (specifically ebooks and IPTV), 12 persistent providers identified and stopped
- 42 settlements reached with identified perpetrators [ii]
Of the questions and reports BREIN received from authors, publishers and producers, 154 concerned so-called scam or phishing sites that lure consumers with the latest content in order to trick them into handing over their data without delivering, because they do not actually have the content. BREIN reports these sites to ScamAdviser.com where consumers can check whether a site is trustworthy.
H i g h l i g h t s
- Criminal Law Action
The policy of the Dutch government is that rights holders are primarily responsible for the enforcement of their Intellectual Property. Criminal investigation and prosecution is the last resort. In principle, cases are eligible, if the annual turnover is likely to be around 100,000 euros and/or there is an organizational layer above direct sales to end users, also recidivism may be eligible for criminal law action. The FIOD is currently processing a case submitted by BREIN. Other files are in preparation.
- Blocking of illegal platforms by Access Providers
The Amsterdam Court of Appeal has granted the dynamic IP and DNS blocking of The Pirate Bay (TPB) claimed by BREIN against Ziggo and KPN, XS4ALL. This is the final decision in this case that dates back to 2010 and previously was dismissed wrongfully on appeal. That dismissal was overturned by the Dutch Supreme Court. Prejudicial questions on interpretation submitted to the highest European court (CJEU) led to the ruling that not only users of the site but also its administrators were infringing. BREIN was awarded the full costs of the proceedings. The appeal in the summary proceedings with Ziggo, which preceded the proceedings on the merits and wrongfully dismissed blocking, has been settled by payment of the legal costs to BREIN.
In new summary proceedings following this decision, dynamic DNS blocking of proxies/mirrors was also granted. Ziggo has lodged an appeal from this. Currently about 200 proxies/mirrors are blocked by the Dutch Internet Access Providers (IAPs). Once every 4 to 6 weeks BREIN sends an update with domains to be blocked or unblocked.
Further blocking orders are in preparation. As with TPB, first proceedings will be instituted against one representative Internet Access Provider and then the other IAPs will be given the opportunity to conform to that order. Upon refusal this will be claimed with an order to pay the full costs of the proceedings.
A Dutch large-scale provider of illegal proxies to circumvent the blocking of TPB has settled with BREIN for 280,000 euros.
- Know-Your-Business-Customer
Because illegal sites/services operate anonymously and do not respond adequately -if at all- to summonses, BREIN contacts hosting providers, among others, not only with summonses to take the service offline but also to hand over identifying data. If they refuse, the data will be claimed in court. These data are necessary to identify responsible parties and hold them liable to stop the illegal trade. In practice, the name and address details provided by customers are incorrect and no or insufficient effort has been made to verify them. In addition, many Dutch hosting providers offer their services through foreign resellers who make no effort to verify the identity of their customers.
The European Parliament has highlighted “Know Your Business Customer” (KYBC) as a key issue for the Digital Services Act (DSA). BREIN co-signed a letter from industry and private enforcement organizations united in KYBC.eu to the European Commission, Parliament and Council calling for a more comprehensive KYBC requirement in the DSA. Under CJEU case law KYBC already applies to online marketplaces and confirmation that it also applies to other intermediaries such as hosting providers would facilitate enforcement against illegal sites/services that otherwise keep switching from one intermediary to another.
With regard to upstream/hosting providers, BREIN instituted proceedings on the merits before the Dutch courts against three Dutch providers in order to obtain a declaration that they should have verified customer data and should also require this from their resellers via a perpetual clause.
- Warning frequent and long-term uploaders
On December 15, BREIN launched an awareness project for frequent or long-term infringing Dutch uploaders of copyrighted works such as movies, series, books and music. Using specially developed software, BREIN is looking for Dutch IP addresses through which repeatedly infringing uploads take place of popular work targeted at the Dutch market.
This project is not about occasional – so called ‘hit & run’ – downloaders but about frequent bittorrent uploaders. Habitual infringers who do not so much operate as a first and large-scale source, against whom enforcement has already been and is being successfully carried out, but more as a lubricant, because through their so-called ‘seeding’ they maintain the availability of illegal content.
A limited number of reports were sent to smaller providers. The major access providers were not yet included because, due to their recent use of CGNAT instead of the rollout of IPv6, BREIN also wanted to provide portal numbers to facilitate the identification of end users. In the meantime such reporting has been included in the software. The planned measurement of the effect of the campaign after six months is postponed until more extensive reporting can be achieved.
With respect to providers that refuse to forward the informative warnings anonymously, BREIN will be forced to demand the surrender of e-mail addresses in order to send the warnings itself. It is possible that such proceedings will cause further postponement of the planned effect measurement, if an insufficient volume of warnings can be sent in the meantime.
[i] BREIN looks for illegal search results for titles that are notified for this purpose by rights holders. The total of search results removed for BREIN has now passed the 20 million mark.
[ii] Please Note: most cases involve stopping the infringement, usually taking the site offline, only in cases where the responsible party is identified can settlement or litigation be undertaken. Settlement amounts range from hundreds to hundreds of thousands of euros depending on the size of the infringement and personal circumstances.