Judgment in Preliminary Relief Proceedings Brein vs. Ziggo/XS4ALL: No Blocking of The Pirate Bay
Evaluation of the judgment re Brein vs. Ziggo/XS4ALL dated 19
July 2010.
On 19 July 2010 the Court of The Hague rendered a
judgment (in Dutch) in the preliminary
relief proceedings instituted by Brein against Ziggo. Brein
demanded Ziggo to shut down The Pirate Bay for its subscribers.
The judge in preliminary relief proceedings rejected this claim
with a remarkable argument and, therefore, in my view, an
incorrect outcome.
For many years Brein has been fighting The Pirate Bay,
which has been active since 2004 and is the largest BitTorrent
website of the world. On this website users upload and download
movies, books, games, software and music without permission of the
rightholders. The Pirate Bay is prohibited in Sweden as well as in
the Netherlands. But The Pirate Bay just continues, and by
constantly switching hosting providers the attempts to get The
Pirate Bay off the air have failed. Brein does not want to go after
individual uploaders and downloaders, and that is the reason why it
is making the largest internet provider of cable internet in the
Netherlands, Ziggo, its target. Almost 1.5 million people have
access to the Internet via Ziggo. In these preliminary relief
proceedings XS4ALL has taken Ziggo's side.
The statutory ground for an injunction on an internet provider to
shut down certain websites is based on Article 11 of the
Enforcement Directive (in Dutch):
Member States shall ensure that, where a judicial decision is
taken finding an infringement of an intellectual property right,
the judicial authorities may issue against the infringer an
injunction aimed at prohibiting the continuation of the
infringement.. Where provided for by national law, non-compliance
with an injunction shall, where appropriate, be subject to a
recurring penalty payment, with a view to ensuring compliance.
Member States shall also ensure that rightholders are in a position
to apply for an injunction against intermediaries whose services
are used by a third party to infringe an intellectual property
right, without prejudice to Article 8(3) of
Directive 2001/29/EC (in Dutch).
In the Explanatory Memorandum to the Dutch implementation thereof
it was observed:
The court will have to consider in this respect whether this
claim is appropriate in view of the share or the involvement of the
intermediary in the infringement and whether the purpose intended
with the claim and the interest of the rightholder outweighs the
disadvantage or the damage that the claim may inflict on the
intermediary. The intermediary must reasonably be capable to pay
the claim, without having to make disproportionate costs in this
respect. If the intermediary himself is not committing an
infringement and summoning the infringer is just as much obvious
and equally well possible as summoning an intermediary, the claim
against the intermediary should be rejected. The claim against the
intermediary will have to serve an independent purpose that cannot
be realized in any other way via the infringer himself.
The judge in preliminary relief proceedings has ruled that it has
not been established for the greater part of Ziggo's
subscribers that they were guilty of infringing the copyrights or
neighboring rights of the rightholders who are registered with
Brein. And in these preliminary relief proceedings Brein wanted to
shut down The Pirate Bay for all subscribers of Ziggo. This
argument of the judge is remarkable. After all, The Pirate Bay is
prohibited in the Netherlands. It is clear that the uploading of
material is infringing copyright. Whether downloading is infringing
copyright is something to be discussed, but everybody who downloads
is also simultaneously offering files for uploading, according to
the judgment. All users of The Pirate Bay are therefore infringing
copyrights. The fact that an injunction for Ziggo to shut down The
Pirate Bay also affects subscribers of Ziggo who have never used
The Pirate Bay is a truism, but it is a strange argument to deny
the requested injunction. This can be clarified by a comparison:
child pornography is also prohibited and if the internet providers
filter on this subject, this filter applies to all subscribers, not
only to subscribers who have been on a child pornography website
before.
In his judgment the judge has also ignored the question of whether
Ziggo is disadvantaged by having to shut down The Pirate Bay, and
whether Ziggo will have to make disproportionate costs. These are
relevant aspects, which also should have been considered. If Ziggo
can block certain IP addresses and websites of The Pirate Bay with
a simple filter and does not experience any disadvantage or damage
as a result thereof, this would have to lead to Brein's claim
being awarded.
To conclude, the judge ruled that Brein can go after individual
subscribers of Ziggo. In a random check Brein has ascertained their
IP addresses, and Ziggo has indicated that it is prepared, in
principle, to provide the name and address details of these
subscribers to Brein. A next step could now be that Brein does
actually take legal action against individual customers of Ziggo.
But in my opinion it is not a 'less far-reaching possibility to
end the unlawful situation' if Brein has to go after thousands
of subscribers of Ziggo. And privacy organization
Bits of Freedom (in Dutch) praises Brein for
the fact that until now it has not gone after any individual
internet surfers yet. If this judgment is upheld, this could
change.
Brein has announced immediately that it will lodge an appeal. This
case of principle will undoubtedly be fought out up to the highest
court.
In Belgium there is a similar case between Sabam and internet
provider Scarlet. This case is at a further stage in the
litigation: at the beginning of 2010 the Brussels Court of Appeal
has posed preliminary questions to the ECJ. It will take a year or
two before the Court of Justice answers these question.
More information is on our weblog
Mediareport.