BREIN Review 2018 – “the art of protecting the creative”

Klik hier voor de Nederlandse versie.

Introduction

Stichting BREIN carries out the collective civil law enforcement for right holders of music, film and series, books and other publications, images and games (often called ‘content’). Right holders are makers as well as producers, publishers and broadcasting companies. Illegal supply, i.e. without consent of the right holders, mainly takes place online. This can both concern downloading and streaming, but also copies or IPTV subscriptions, e.g. through auction sites.

BREIN’s approach focuses on all forms of illegal supply, regardless of the technology used for it, such as bittorrent, cyberlockers and Usenet and websites or social media linking to it. In the first place, BREIN looks at the providers and uploaders and next at intermediaries such as hosting and access providers, but payment services, advertisers and search engines as well. Also in case intermediaries are neutral, they have to assist in fighting illegal use. For more information please see www.stichtingbrein.nl

Figures

• 511 investigations completed, 97 ongoing
• 339 illegal websites dealt with (downloading and/or streaming)
• Blocking of 1 website (The Pirate Bay) by internet access providers and about 150 proxies/mirrors, resulting into a drop in Dutch visits of over 75%
• 79 illegal media boxes/IPTV merchants stopped
• 17 major uploaders stopped
• 20 Facebook groups removed
• 1,291,384 search results removed
• 12,470 files removed from cyberlockers
• 46,203 online offer ads for illegal copies removed
• 26 online providers of illegal copies dealt with
• 31 settlements with penalty clause plus damages running up to 40,000 Euro a case

Of the hundreds of inquiries and notifications BREIN received from right holders and interested parties 272 concerned so-called scam websites. These are phishing websites which entice consumers with the newest content in order to steal their payment data from them without ever supplying such content.

Highlights

Access Blocking of Illegal Websites

Although BREIN always warns the illegal services themselves as well as their hosting provider, there are persistent websites that hide abroad and use hosting providers who do not  care. That is why access blocking of popular illegal websites by internet access providers is an important part of the mosaic of measures taken by BREIN to limit illegal online supply.

Such blocking is applied inter alia in the EU member states on a wide scale. In the Netherlands, the 9 biggest ISPs block access to The Pirate Bay (and TPB proxies/mirrors) based on a judgment in preliminary proceedings following a claim of BREIN. It concerns dynamic blocking of IP addresses and domain names monitored by BREIN. Since said blocking started about one year ago, Dutch visits have dropped by over 75%. This is similar to the other countries where blocking is performed. In the meantime, research has shown that not only traffic to all the illegal websites drops by blocking a larger number of websites, but also that traffic to legal platforms increases as a result.

In the case BREIN v. Ziggo, the highest European court (EUCJ) ruled that The Pirate Bay itself also infringes by managing the offer of torrent links uploaded by users for obtaining infringing content. This interpretation has been confirmed last year by the Dutch Supreme Court and the case has been referred back to the Appeal Court of Amsterdam for the final decision whereat the proportionality of the measure will be assessed once more. There is still some haggling concerning this topic, but this should not cause any problems, seen the drop in visits after the temporary blocking and the experience in blocking in other EU member states. The decision is to be expected mid-2019.

Dealing with Illegal Websites and Uploaders

Last year, BREIN dealt with 339 illegal websites and 17 major uploaders. In general, it concerns all kinds of content, but there are also suppliers who specialize for instance in film/series, books and other publications, music or games. Settlements are reached with identified uploaders. They involve a cease-and-desist declaration with penalty clause and payment of a compensation for damage and costs. The same goes for operators of illegal websites. However, most websites are taken down by their hosting provider without it being possible to identify any parties involved. The websites dealt with concerned inter alia 38 torrent websites, 11 Usenet link websites, 65 streaming websites, 45 cyberlocker link websites and 12 cyberlockers. Overall, more than 300,000 Euro was collected for settlements and legal costs last year.

Dealing with Illegal Online Merchants

Several online sellers of illegal digital copies of books and other publications were tracked down by BREIN. The most conspicuous one was a family from Lelystad, the mother of which had already signed a cease-and-desist declaration previously. Presently, inter alia her son appeared to be involved in a new e-book website for which over 43,000 ads had been posted on Marktplaats, one for each title. The case was settled for 20,000 Euro and a firmer cease-and-desist declaration for all the persons involved of 1,000 Euro a book in the event that they are caught again.

Other striking cases of illegal sale concerned inter alia a website that offered hand painted copies of copyright protected paintings, a DJ with a subscription for new music files, another provider of e-readers with illegal e-books for ‘free’ on Marktplaats, several sellers of game computers with illegal copies of vintage games and some four sellers of music computers comprising tens of thousands of illegal copies of songs.

Dealing with Sale of Illegal IPTV Subscriptions

Furthermore, 79 online providers of illegal IPTV subscriptions were tracked down and dealt with. The total number since the decision in BREIN v. Filmspeler of the EU Court of Justice comes close to 300. Since then, the illegal subscriptions are usually sold without box and they give access inter alia to a large number of intercepted pay-channels which, in general, already cost more individually. Moreover, the subscriptions often give access to illegal video-on-demand. BREIN attaches bank accounts of illegal sellers. As a result, the sums of settlements have increased up to 40,000 Euro a case. If no settlement is reached, then a summons in proceedings on the merits follows in which directors may also be sued personally for the damage. Furthermore, the police in The Hague attached several IPTV boxes at an electronics store which were sold together with a one-year subscription for 199 Euro.

Dealing with Illegal Usenet Suppliers

Usenet is a predecessor of the worldwide web and was used as a kind of bulletin board for asking and answering questions in so-called news groups. This part has long been taken over by the internet. Since the launch of binaries by which audiovisual files can be converted into text the usenet is almost exclusively used for downloading infringing content. Commercial usenet providers offer, either directly or through so-called resellers, subscriptions which grant access to their servers in which they keep content uploaded by users for a long time. The original NTD policy agreed for the protocol is no longer complied with. For making the selection and downloading of popular content easier on usenet there are so-called nzb link websites. It is to the advantage of all parties to blame each other and play the innocent themselves. In fact, in practice they aim at keeping popular content available as much as and as long as possible without authorization. This means that there is no compensation for the right holders, whereas the sale of subscriptions is a golden goose.

BREIN takes action against usenet link websites, uploaders, resellers and commercial usenet providers. Actions of the past year confirm the suspicion that in reality the parties are in cahoots. The Appeal Court of Den Bosch ordered the reseller Newsconnection to take measures by which it can actually identify its subscribers in case of infringement. This requires cooperation of usenet provider XSnews which grants access to its servers against payment. This was frustrated because the ownership of said servers was allegedly transferred to a mailbox company in San Marino. Newsconnection gave away subscriptions for free to major uploaders who assisted in maintaining the illegal offer on usenet, making users willing to pay for subscriptions. Next, it appeared from investigation by BREIN that the owner of Newsconnection is also the anonymous owner of the Place2home link websites which have been taken down in the meantime and in which major uploaders were involved. So far, BREIN has collected 45,000 Euro for forfeited civil fines from this person. Next to the websites the major uploaders were also dealt with by BREIN.

Another BREIN court case concerns the former commercial usenet provider News-service Europe (NSE). This provider sold subscriptions through resellers and initially refused to comply with a Notice & Take Down (NTD). The NTD it introduced under pressure of the court case was ineffective by reason of conditions unnecessarily limiting speed and quantity of notices. NSE also played the innocent as far as the content it copied and kept available on its servers was concerned, whereas originally it actually categorized it. After a court order to remove illegal content, it chose to cease its activities instead of consulting BREIN. On appeal, the court ruled that NSE is entitled to the liability exemption for hosting providers but is still held to maintain an effective NTD. BREIN has lodged a cassation appeal from this with the Supreme Court. Last year, the Advocate General (AG) advised even twice to ask the EUCJ for a preliminary ruling on the scope of the liability exemption. The objections of NSE to this the AG dismisses. The decision of the Supreme Court is planned on 28 February.

20th Anniversary BREIN

Stichting BREIN was founded in 1998 as a merger of enforcement programs for music, film and games. Early this century, books, other publications and images joined. The board of BREIN consists of a balanced representation of makers and the creative media industry (i.e. producers, publishers, broadcasting companies and distributors). BREIN is financed by these parties through the Federatie Auteursrechtbelangen and VOICE, as also the Motion Picture Association, movie theaters and Netflix.

These last two decades, 41,000+ websites and servers were dealt with involving 2+ billion links and unauthorized files, 17+ million search results for illegal content were removed and about 80,000 interventions were carried out on demand-and-offer websites whereat offers for about 1 million illegal works were removed and 6,000+ online sellers were dealt with. BREIN estimates the damage in the Netherlands caused by piracy at over 200 million Euro per annum. For more information about BREIN’s methods and activities, please see www.stichtingbrein.nl