In 2009, the anti-piracy group BRAIN I take Europe news service (NSE), one of the largest Usenet providers in Europe at the time, to court.
Representing the film and music industries, BREIN argued that NSE should remove all infringing content from its servers, and in 2011 the Amsterdam Court cast aside with the anti-piracy group.
In its initial verdict, the Court found that NSE voluntarily facilitated online hacking through its services. As a result, the company was ordered to remove all copyrighted content and screen future posts for possible copyright infringement.
Closing and Appeal
According to the Usenet provider, this filtering requirement would be too expensive to achieve. That close your service but appealed the case.
After several more years of litigation, the Amsterdam appeals court ruled that NSE was not responsible for user hacking after all, but NSE was asked to offer a responsive and effective notice and takedown procedure, possibly with additional measures.
Unhappy with the result, BREIN decided to take the matter to the Dutch Supreme Court. While NSE was no longer a threat, the case could prove crucial to many other Usenet providers.
BREIN has been highly critical of some commercial Usenet companies, describing them as a haven for pirates of all stripes, with video uploaders, site owners and resellers working together to facilitate and profit from widespread copyright infringement.
NSE clearly disagreed and positioned itself as a neutral content intermediary that simply hosts and transfers bytes. As such, it should fall into the same category as other services, including YouTube and file hosting platforms.
supreme court decides
Since the Dutch Supreme Court initially wrestled with key questions on the liability side, it planned to seek the opinion of the European Court of Justice (ECJ). However, after a relationship YouTube/Uploaded liability verdict was issued by the highest court in Europe, which was no longer deemed necessary.
Instead, both NSE and BREIN were asked to share their stance on that verdict, which essentially held that online platforms are not responsible for hacking users, as long as they have a proper takedown procedure in place and are unaware of hacking. no specific violation.
In its decision published today, the Dutch Supreme Court affirms that the appeals court ruled correctly when it found that NSE should not be held liable. The fact that NSE had a decent takedown procedure and no apparent knowledge of the breach weighed in their favor.
The court also confirmed that NSE did not select any content or specifically promote copyright infringement.
The finer details are discussed in the full verdict which also orders BREIN to pay โฌ65,000 in court costs. Aside from the financial aspect, it's mostly a moral victory for the former Usenet provider, having shut down its service many years ago.
bittersweet victory
Patrick Schreurs, former technical director of NSE, describes the verdict of the Supreme Court as a bittersweet victory.
โThis confirms that in 2011, NSE had to cease its activities on the basis of an incorrect ruling by the Amsterdam District Court. Unfortunately, the BREIN Foundation was not willing at the time to wait for the appeal to be concluded. With this final judgment, it appears to have been a serious misjudgment," says Schreurs.
Former NSE CFO Wierd Bonthuis adds that the 14-year battle with BREIN left its mark. He had significant personal, financial, and business consequences.
Meanwhile, BREIN director Tim Kuik is not happy with the result. He also highlights the length of the legal battle, albeit for a different reason, noting that Usenet has changed significantly since 2009.
โOf course, we are disappointed that, after the Court's somewhat confusing finding of facts, the Supreme Court ruled that this Usenet provider was not infringing at the time. It doesn't matter much though, because that would be different today,โ Kuik tells us.
โAs the Court also ruled, an effective notification and removal policy is needed that can track the number and frequency of new uploads, and additional measures are also available. Since the CJUE's YouTube/Cyando ruling, it is clear that if you do not have them, you are infringingโ.
BREIN was the party that ultimately took this matter to the Supreme Court, of course, so it was not exactly a trivial matter. The anti-piracy group hoped that the highest court would hold NSE accountable but, as we learned today, that is not the case.
To update: Following publication, Tim Kuik sent us a statement in response to NSE's assertion that BREIN was unwilling to wait for the appeal to be processed.
โNSE decided to shut down despite Brein's offer to negotiate the necessary measures and Brein's voluntary suspension of carrying out the initial verdict to do so. Instead, NSE owners apparently decided to go for the easy option of securing their income by transferring their activities to another provider,โ says Kuik.
โWe believe they did so because the loss of availability of unauthorized content on NSE's servers would have caused them to lose their customers who paid for access. It is our understanding that your ongoing court case with Brein was funded by other Usenet providers with the same business model. We believe they did this to keep the best hacking protection measures at bay for as long as possible.โ
