Following close to 15 years of action against file-sharers and file-sharing sites it’s accepted that while Internet companies aren’t usually responsible for the actions of their customers, there are limits.
However, while the above relates to copyright liability, there are elements of Hollywood’s anti-piracy teams that believe that ISPs can be on the hook for much, much more.
During the past few days TorrentFreak received documents which show attempts by the UK’s Federation Against Copyright Theft to have streaming video site TheShowDepot.com taken offline. The site was hosted by LeaseWeb in the Netherlands.
“We are requesting the removal of the whole domain from your servers. The website serves no purpose other than to provide access to copyright protected media,” FACT told LeaseWeb in an email, supported by links to 16 episodes of The Big Bang Theory.
LeaseWeb reacted by notifying TheShowDepot of the complaint, warning that a failure “to take appropriate action to prevent future complaints” would result in an IP block of the site’s server.
It’s not clear if TheShowDepot responded “appropriately” or not, but their IP address was eventually blocked by LeaseWeb on November 30. While disabling a whole website based on one complaint might be considered excessive by some, FACT’s veiled threats to LeaseWeb during the course of the exchange will certainly raise the most eyebrows.
“The domain ‘theshowdepot.com’ appears to resolve to IP address 18.104.22.168 which is provided by LeaseWeb B.V,” a FACT ‘Internet Investigator’ told the webhost.
“The fact that LeaseWeb are now aware of this means that should you continue to facilitate the illegal activities of ‘theshowdepot.com’ and accept payment for doing so then ‘LeaseWeb’ may be committing associated money laundering offenses. If the Domain continues to operate whilst being hosted on LeaseWeb servers FACT will consider escalating the action.”
In discussing FACT’s highly unusual claims, LeaseWeb Senior Regulatory Counsel Alex de Joode sent TorrentFreak a clear explanation of where he believes his company’s liability begins and ends.
“LeaseWeb’s general abuse procedure in regard to copyright claims, for content hosted in the Netherlands, follows the agreed upon principles between the content owners, hosting companies (like LeaseWeb), the Dutch Ministry of Economic Affairs and the Dutch Justice department (NTD Code of Conduct),” de Joode explains.
“Under Dutch law, as long as we follow the before mentioned principles, there is NO criminal liability for hosters in the Netherlands. According to the eCommerce Directive the legislative regime in a third country (in this case the UK) can NOT be stricter than the legislative regime in the host country (in this case the Netherlands). Any claim otherwise is unfounded.”
The LeaseWeb counsel told TorrentFreak that his company strictly adheres to the notice-and-takedown (NTD) Code of Conduct in which there is “no room for third party pressure.”
“Either a claim is valid and content is removed, or a claim is not valid and the content remains available. We see therefore no reason to include claims of money laundering in NTD requests, this will only make [FACT's] other claims look suspicious, thus hindering a speedy processing of NTD requests,” de Joode says.
“As far as i’m aware FACT is the only organization that uses these unsubstantiated claims. I do not understand why they would try to strong arm hosting companies in removing potentially infringing websites. If they have a valid a claim a simple, proper NTD request will suffice in having the content removed.”
In comments to TorrentFreak, Arnoud Engelfriet, a lawyer specializing in Internet law at the ICTRecht law firm, notes that FACT’s claim – that TheShowDepot has “no other purpose” than to infringe copyright – has its roots in The Pirate Bay case.
“The Dutch courts treated thepiratebay.org as a site with ‘no other purpose’ than to enable infringement and thus ordered it shut down,” Engelfriet explains.
“However, the money laundering claim is too far-fetched and sounds like legal blustering to me. The argument would be that because the site is infringing copyright, its income is illegal. Any payment to Leaseweb thus must have been made with those illegal monies, and knowingly accepting illegal monies would then be ‘laundering’. Let me be polite and say that I have yet to see a legal authority confirming that argument,” he concludes.
Several days ago TorrentFreak contacted FACT with a request for comment on their controversial claims but we have received no response. In the meantime TheShowDepot has relocated to a new host in Latvia where it remains up – for now.