Uncooperative hosting provider liable for damages

Yesterday the Dutch district court of The Hague ruled against hosting provider XSnetworks in a civil case filed by the content protection foundation BREIN. The court ruled that the hosting provider acted unlawfully by not immediately removing the evidently unlawful site Sumotorrent and not promptly disclosing all identifying details of the operators to BREIN. The provider may not reinstall the illegal site and is liable for the damages that arose from keeping the site online in spite of warnings and motivated notices from BREIN. In addition the hosting provider must disclose all information in its possession that assists in identifying the owners/operators of the site. All this on pain of a penalty sum of EUR 10,000 per day with a maximum of EUR 500,000.

Until closing for business last February XSnetworks hosted a number of ‘evidently illegal websites’ of which Sumotorrent is the largest. A hosting provider hosts websites and connects them to the Internet. Sumotorrent is an anonymously operating website with 4.5 million (torrent)links of which most -and the most used as well- give access to files with illegal copies of copyrighted content such as film, music, books and games. There is extensive Dutch case law that makes clear that a site like Sumotorrent that structurally gives access to unauthorized content is ‘evidently unlawful’. If such a site does not clean up its act, the hosting provider can be asked to take it offline.
In spite of the fact that XSnetwork had been made aware by BREIN that Sumotorrent is an evidently illegal site, the hosting provider refused all cooperation and neglected to take adequate measures to limit the damage caused by the site, such as making it inaccessible and disclosing identifying information about its customer operating the site. Instead the hosting provider knowingly and willingly kept the site online during which time it continued to cause damage to rightholders who are making their works available against payment online and offline. Even after it received a writ of summons by BREIN, it afforded the site ample time to relocate to another hosting provider in the Ukraine. After that the provider disclosed identity details that clearly were falsified and held back other identifying details.

Now the court holds XSnetworks liable for the damage caused by its unlawful refusal to cooperate. It must repay the -still to be assessed- damage caused by Sumotorrent after that refusal. The court ruled that Sumotorrent is ‘evidently’, i.e. clearly, illegal, and XSnetworks should have known that. The more so because it is a professional hosting provider and has been alerted by BREIN’s motivated notices. So it should have made the site inaccessible promptly and disclosed all identifying information in its possession.