BREIN overview 2015
Sixteen ex-parte orders
BREIN obtained 16 ex-parte orders against
operators of illegal online supply, nine concerning movies and series,
two regarding books (one of which on Facebook), two regarding games (of
which one also chipping of consoles), one music and two mixed film,
books, music and games. Eight of the orders concerned large uploaders,
six for bittorrent and two for usenet. One order concerned an important
moderator of one of the largest illegal bittorrent sites,
Kickasstorrent. Settlements have been closed with all these parties.
BREIN catching more illegal uploaders
BREIN’s enforcement is aimed particularly at illegal supply. Aside from sites this also regards first and large uploaders who function as a source for such sites. Thus BREIN identified three torrent uploaders of “Dutch Release Team” that supplied Kickass in particular. BREIN obtained an ex-parte order and the uploaders settled by paying compensation, signing a cease and desist undertaking with penalty sum and giving information about other members of the release group.
The mastermind behind the release group DMT was forced to quit. He paid a settlement of several thousand euro and posted a warning to other users on his profile. He and another illegal uploader who received an injunction through an ex-parte order, tried to pay their settlement by crowdfunding. BREIN sees this as income from their illegal activities. The crowdfunding was stopped and the offenders must pay the collected amount on top of the settlement.
Besides large bittorrent uploaders BREIN also obtained a court order against a heavy usenet uploader.
BREIN is planning to increase its enforcement against serious uploaders in 2016 and developed software to do so. This systeem was registered with the Dutch Data Protection Agency (CBP) that reviewed and approved it.
Besides a cease and desist undertaking with a penalty clause for future infringement, BREIN also demands a financial compensation for costs and damages from prolific uploaders. The costs alone soon run up to several thousand euro. In the past year settlements amounts ran up to 12,500 euro per infringer.
“Some uploaders pretend it is just an innocent hobby while they cause major damage and illegal sites earn lots of money. They must know that when they get caught, it will turn out to be an expensive hobby”, says BREIN.
Blocking case against Dutch ISPs
The Supreme Court (SC) issued an interlocutory verdict in the appeal by BREIN against the Dutch ISPs in the blocking case concerning the illegal bittorrent site The Pirate Bay (TPB). The verdict of the Appeal court that blocking must reduce illegal traffic instead of only traffic to The Pirate Bay was called incomprehensible. The SC also ruled that BREIN is entitled to claim blocking of illegal sites one by one. However the Supreme Court stopped short at providing a final verdict, instead asking prejudicial questions from the highest European court (CJEU). The SC wants to know whether TPB itself infringes copyrights and if not, whether TPB still may be blocked in case the website does not make protected content available itself.
The CJEU already allowed blocking in a case in which the operator of the illegal site posted links himself. Also, blocking of amongst others TPB takes place in a dozen European Member States. After the verdict of the Dutch Supreme Court, the German Supreme Court granted blocking orders in two similar cases and considered unauthorized linking to be direct infringement.
In addition to TPB BREIN also wants blocking of other popular illegal sites that hide abroad. Sites who persist in direct infringement can already count on facing a blocking order in the Netherlands.
Legal action against mediaplayers programmed for illegal streaming
The District Court of Lelystad referred prejudicial questions to the CJEU. The case regards a trader in mediaplayers on which he installed software and add-ons to stream content from illegal websites via hyperlinks. Streaming involves making a temporary download, which is allowed if it concerns a “lawful use”. The court wants to know whether streaming from an illegal source is such a lawful use or whether it is in contravention of the “three step test” for copyright exceptions. Previously the CJEU already ruled downloading from illegal source to be illegal. The District Court also wants to know whether hyperlinking to unauthorized content via freely accessible add-ons on a mediaplayer is an infringing communication to the public.
BREIN also addresses other traders in pre-programmed mediaplayers and is appealing against the rejection of a preliminary injunction on the basis of tortuous marketing. BREIN argues that the matter is not just about facilitating the use of unauthorized streaming by users but also about facilitating the illegal supply of streaming which is unlawful. Previously BREIN faced a similar dilemma in a case about facilitating downloading from an illegal source which at that time was explicitly allowed by the Dutch government. Back then the judge did grant the injunction because the supply of illegal content was facilitated which was unlawful even though the use of it was allowed. BREIN believes an injunction should be granted because this case is similar. By the way the CJEU later ordered that downloading from an illegal source is illegal. BREIN expects that this will also be decided for streaming from an illegal source.
343 sites offline
BREIN took down 343 illegal sites last year, mostly via their Dutch hosting providers. This concerned mostly bittorrent sites (63), streaming sites (96) and so-called link farms (150) for illegal files that can be streamed or downloaded from cyberlockers, as well as indexers (16) for illegal files on usenet. There is a tendency for illegal sites to hide their IP-address behind Cloudflare but it is disclosed on BREIN’s request. Although that is helpful, BREIN nevertheless believes that Cloudflare should discontinue servicing such illegal sites.
When site operators are identified and reside in The Netherlands they have the possibility to settle with BREIN. Such settlement contains signing a cease and desist undertaking with penalty sum and financial compensation for costs and damages. The amount of the settlement depends on the circumstances of the case. In the past year this concerned amongst others a site with more then 20,000 mainly Dutch eBooks. If it is not possible for BREIN to track down the responsible party through public sources, relevant intermediaries will be requested to provide identity details. If this does not happen voluntarily, BREIN applies for a court order.
Dutch Court orders Google to provide identity details
BREIN addressed Google Inc and Google Ireland Ltd about an anonymous party selling illegal e-books via Google Play. The seller was removed and Google stopped the possibility to create new accounts but BREIN also wanted to hold the seller liable for his actions. Google refused to provide these details voluntarily. BREIN obtained a court order for disclosure with which Google complied. Google filed an appeal against this verdict.
Also access providers can be ordered to provide identity details
Dutch ISP Ziggo’s standpoint that the conditions of the Supreme Court in the Lycos/Pessers verdict for disclosing identity details were not applicable for access providers did not held up in court. Nevertheless the court rejected the order in this concrete case because intent was not proven. Ziggo took the site offline but refused to provide the identity details because, according to Ziggo, the case did not concern a site but an app and its costumer might have granted online access to it by accident. Ziggo argued that the case was just about an illegal downloader against which BREIN syas not to act. This is a misconception: It is not BREIN’s policy to file damage claims against illegal downloaders but that does not exclude an end user approach of a more educational nature.
Seven popcorn time sites and two developers addressed
Seven of the sites taken down concerned Popcorn Time, two targets (‘forks’) fled abroad where other copyright protection organisations take it over. Multiscope research concluded that the illegal Popcorn Time had 600,000 Dutch users at the end of Q3 while the legitimate Netflix had 1.3 million (respectively 8 and 17% of Dutch households). Three out of ten people that know Popcorn Time are hesitant to use it because it i
s illegal and they fear the files may contain viruses.
After the MPAA identified the persons responsible for the most popular Popcorn Time fork and identified one of the most important illegal torrent sites supplying content and confronted them with a court order, they went offline. Other forks tried to take over while others tried to to bring the affected fork back to life. Two Dutch developers who were involved in that intiative were identified by BREIN and took their contribution offline after BREIN confronted them.
Eight cyberlockers addressed
BREIN took down seven illegal cyberlockers via their Dutch (and two foreign) hosting providers and obtained identifying company details of six illegal cyberlockers. The eighth cyberlocker moved from the Netherlands as a result of BREIN’s actions. Two of the illegal cyberlockers concerned only music and the other six also concerned film, TV, books and games.
5.7 million+ notices to Google
BREIN issued more than 5.7 million notices about illegal search results to Google and broke through a total of 12.5 million since inception of the program at the end of 2012.
Aside from the NTD to Google around 21,000 notices were issued to cloud services and YouTube.
Three torrent trackers addressed
BREIN issued notices to various torrent trackers (which arrange bittorrent traffic) to blacklist illegal info hashes. Two complied and a third one fled abroad where it is addressed by the copyright protection organisation there.
3,621 interventions against auction site traders
Last but not least BREIN carried out more than 3,600 interventions against advertisements offering illegal copies on auction sites, in particular on eBay owned Marktplaats. One of BREIN’s 16 ex-parte court orders concerned a trader on Marktplaats offering 13,500 illegal eBooks.
Judgement Appeal Court in BREIN case against paid Usenet provider
The final verdict is expected in the appeal by News-service Europe against BREIN. The court of first instance ruled that the usenet provider infringed copyright by keeping illegally uploaded files available on its servers and was acting unlawfully by synchronising illegal fiels with other news servers. In an interim verdict the Appeal Court indicated it sees NSE as a hosting provider that needs additional measures to prevent infringement next to an effective NTD with sufficient capacity. A court-recommended conversation between parties did not succeed because NSE discontinued its business and wants to hold BREIN liable for that decision. Appeal to the Supreme Court is expected whatever the outcome at the Appeal Court. BREIN considers NSE as a party that willingly and knowingly loaded unauthorised content on its server park and kept it available at length for downloading by paying customers. Even if this would not be considered direct infringement, a heavy duty of care must rest on such a party.
Discussion with ISPs about education of infringing end users
At the end of 2014 the secretary of state of Justice announced he would bring stakeholders around the table to discuss education of infringing end users (aka illegal downloaders). This can be done for exmaple by landing pages and emails (alerts). Enforcement by BREIN is aimed at illegal supply. Individual right holders can in principle hold infringing end users liable, the consensus however still is that education and awareness raising together with the increasing breadth of legal online supply is preferable.
This autumn the (higher ranking) minister of Justice who took over this matter, organized the seminar “Legal supply – the norm” which reviewed a number of voluntary intiatives. Right holders prefer a mix of the British and Danish model. ISPs do not really come forward on this subject although some appear to favour the British model of copyright alerts combined with a public awareness campaign.
In the meantime a number of right holders are at their wits end and prepare a campaign of settlement proposals to infringing end users, comparable to the approach in Germany.
In response to Parliamentary questions about such end user litigation the minister of Justice said that the enforcement of Intellectual Property in princple is a civil law matter. The collective enforcement is carried out by the private BREIN foundation which aims at illegal suplly (sites) including first and/or prolific uploaders. However, right holders are entitled to enforce their rights individlally and this may be done by making settlement proposals to illegal downloaders. With respect to the disclosure of name, address and residence details, ISPs in principle must weigh whether a request complies with the conditions set in case law. In case of rejection the right holder can seek a court order for disclosure of identity details. The court will balance all interests concerned, including the right to privacy. Also with respect to settlement proposals the matter may be taken to court, according to the minister.