Dutch anti-piracy group BREIN is eager to warn persistent pirates, but doing so isn't easy in the Netherlands. The issue has been at the center of several lawsuits, and a mass notification forwarding scheme was recently shelved over privacy concerns. In a victory for BREIN, an appeals court ruled today that, in specific cases, ISPs can be required to send copyright warnings to online pirates.
With the support of Hollywood and other content industries, the Dutch anti-piracy group BREIN has been fighting online piracy for nearly a quarter of a century.
The nonprofit organization has shut down thousands of hacking sites since then, including the former torrent giant. mininova and many other notable names.
In recent years, BREIN has also focused more on deterring users. In part, this has been achieved by tracking down persistent pirates and warning them through warning letters.
This can be an effective strategy, but contacting suspected pirates in the Netherlands is easier said than done. Just a few weeks ago, a local appeal court ruled that the Internet provider Ziggo is no need to resend BREIN warning letters to subscribers whose accounts were used to share pirated content via BitTorrent.
Warning to an e-book pirate
In this case, BREIN chose not to appeal the ruling. Instead, he was looking forward to an appeals court ruling in a related case, which was handed down today.
The matter involves a Ziggo subscriber who is accused of offering a library of over 200 e-books to the public through an open directory. BREIN expected the ISP to send a notice to the associated account holder or share his personal data, but Ziggo refused to do so voluntarily.
BREIN took the matter to court which last year ruled that the ISP is not required to cooperate with the request. Without a license from the Dutch Data Protection Authority, linking the IP address to subscriber information would violate privacy law. In the same way, it would not be allowed to share the data with BREIN.
Appeals Tribunal Rules on Piracy Warning
Disappointed with this result, BREIN immediately appealed. That paid off today when the Arnhem-Leeuwarden Court of Appeal awarded the anti-piracy group a victory.
"The court finds that Brein's interests in shutting down public access to this library via the Internet outweigh the violation of Ziggo's customer privacy and Ziggo's interests," the court's press service said. writes.
BREIN also requested a ruling that would force Ziggo to comply with its demands in similar cases in the future. Since future cases will have to be tried individually to weigh the interests of both parties, the request was denied.
The Court of Appeal ruling means that Ziggo has five days to send BREIN's warning notice to the relevant subscriber via email. If this fails to shut down the pirated eBook directory, Ziggo must share subscribers' personal data with the anti-piracy group.
The Court of Appeal also tidy Ziggo will pay โฌ14,385 for the anti-piracy group's legal fees.
As usual
BREIN is pleased that Ziggo should send his warning, but the overall goal was a more direct way to reach the pirates in future instances. Speaking to TorrentFreak, BREIN director Tim Kuik says it will be "business as usual" for new cases.
โThat means we must motivate a request for name and address details on the basis of the Supreme Court's Lycos/Pessers criteria. Next, a broker needs to evaluate and make a decision. If it refuses to cooperate, BREIN can go to courtโฆโ, says Kuik.
Mircom's angle
Dutch courts are required to weigh privacy rights against the interests of rights holders in determining whether ISPs are required to comply with disclosure requests.
This cautious approach is good for Internet users, but BREIN sees it as a major nuisance. It also contradicts how these issues are handled elsewhere. In the United States and other countries, for example, ISPs are required by law to send copyright infringement notices to subscribers.
Interestingly, BREIN reflexes a note in this week's decision that references an earlier ruling by the Court of Justice of the European Communities. In this 'Mircom' caseEurope's highest court has concluded that ISPs can be required to share the personal data of suspected BitTorrent pirates.
Linking the IP addresses of suspected non-criminal hackers to subscriber details does not, by definition, violate EU privacy law, the EU court has held.
However, in the same case, the court also noted that national courts must try each case to properly weigh the rights of both parties, to ensure that everything is in accordance with local law.
Overall, today's Court of Appeal ruling is a small victory for BREIN. That being said, the battle between privacy rights and the interests of rights holders in piracy cases is certainly not over in the Netherlands.
