Mininova Must Remove Torrent Files and Actively Check For Copyright Infringement
The proceedings against Mininova were instituted by Stichting
BREIN, a foundation which represents a large number of right
holders entitled to copyrights and neighboring rights. BREIN argued
that Mininova should be held responsible for the large-scale
copyright infringements that take place with the exchange of files
by its users. Through so-called torrent links, Mininova's
platform enables internet users to find and download music, movies,
software or other content that may be protected by copyright.
Mininova itself only plays the role of intermediary: the files are
not on its servers, but are directly transmitted from user to user.
Mininova does use moderators and administrators, who monitor the
platform.
BREIN had argued primarily that Mininova itself is infringing
copyright law. The Court rejected this argument straightforwardly:
by making available torrents Mininova does not make the
copyright-protected works as such accessible or available to the
user. The mere fact that Mininova offers others the opportunity to
infringe copyrights is thus insufficient in order to regard
Mininova itself as the entity who makes these works available
within the meaning of copyright law (grounds for the judgment 4.4
and 4.7). But the Court lent a more willing ear to BREIN's
second argument, namely that Mininova is acting unlawfully because
it offers the opportunity to commit copyright infringements and
incites people to do so.
In this regard the Court first and foremost considered it
important that through its moderators and administrators Mininova
is able to monitor what is happening on the platform. Moderators
can remove torrents; administrators occupy themselves with requests
based on the notice and take down procedure and may take measures
with regard to individual users. The Court concluded that Mininova
is actively monitoring the website, because the moderators and
administrators remove torrents that contain porn or viruses, or do
not contain any file at all. This monitoring does not take place,
however, with regard to torrents of which the moderators and
administrators should suspect that they are linking to
copyright-infringing files. According to the Court, the evidentiary
material submitted by BREIN moreover makes clear that the
administrators and moderators even encourage the downloading of
infringing files. Secondly, the design of the platform shows that
Mininova maintains its website well: the torrents posted by the
users are neatly divided into categories and subcategories (for
instance 'TV series' with subcategory 'CSI'). With
these categories Mininova helps users to find files of which it
should suspect that they contain copyright-protected works. The
Court therefore concluded that Mininova facilitates copyright
infringement and, moreover, even promotes it. Because Mininova
derives a considerable income from advertising via the large
amounts of visitors to its website, Mininova itself profits from
these copyright infringements by its users.
But is this unlawful? When answering this question, the
so-called 'safe harbor' for internet providers plays an
important role. Mininova had invoked article 6:196c subsection 4 of
the Dutch Civil Code. This article stipulates that intermediaries
who store information of third parties upon their request cannot,
in principle, be held liable for the contents of this information.
This section of the law is an implementation of the European
E-Commerce Directive, and is meant to indemnify internet providers
who process information on a large scale against liability claims,
since these claims could considerably hinder the freedom of
internet traffic. But according to the Court, this defense of
Mininova does not hold: since Mininova actively occupies itself
with the contents of its platform, its position cannot be compared
to that of hosting providers as meant in article 6:196c subsection
4, which are purely intermediaries. Mininova can therefore be held
liable for facilitating and promoting copyright infringement, and
as a result Mininova is acting unlawfully towards the rightholders
affiliated with BREIN.
Finally, the Court took a remarkable decision with regard to the
measures which Mininova will have to take in order to undo the
unlawfulness of its actions. Mininova not only has to remove all
infringing torrents identified by BREIN, but also has to ensure
that in the future no more torrents will be offered that link to
files with regard to which there is 'reasonable doubt' that
they do not contain any copyright-protected works. This does not
only mean that there is a risk that content will be removed which,
despite reasonable doubt, is actually lawful, but also that
Mininova will have to actively monitor the torrents posted by its
users for possible copyright infringement. For a non-infringing
intermediary, this is a very far-reaching obligation.