Publishing Locations Of Pirate Movies Is The Same As Hosting Them

A movie studio has won a lawsuit against Dutch Usenet community FTD. In a surprising decision, a court reasoned that by allowing the publication of the location of pirate movie stored on Usenet, FTD was effectively publishing the movie as if they had actually hosted it on their own servers.

Earlier, Dutch movie studio Eyeworks applied for a court injunction to stop Usenet community FTD from “making available to the public” their movie Komt een vrouw bij de dokter (A Woman At The Doctor).

In this case the “making available” wasn’t hosting or storing the movie, nor was it offering torrent or NZB links to it either. FTD allows users to report (or ‘spot’) the locations of files which exist on Usenet. It is the publication of this information which Eyeworks was seeking to stop, an activity it believes is tantamount to publishing the movie itself.

In early May the case was heard at a court in The Hague. FTD lost the case and the court issued an ‘ex parte injunction’ (one handed down without any FTD involvement) which banned the site from ‘spotting’ the Eyeworks movie.

Through its lawyer Arnoud Engelfriet, FTD filed an objection on the basis that the provisional measure should not have been issued under Dutch law. That objection was heard and the decision was delivered yesterday – FTD lost again.

“I am flabbergasted by the court’s reasoning,” Engelfriet told TorrentFreak. “It is established caselaw that publishing hyperlinks or torrents (Mininova, Pirate Bay) is *not* the same as a publication. FTD does *less* than what Mininova or Pirate Bay does, but according to the court we are more liable than they are?”

In coming to its decision, the court drew heavily on the earlier Newzbin case.

“They say that FTD is doing the same thing, and since the English courts held Newzbin liable for infringement, FTD must be liable too,” Engelfriet explains. “This completely ignores the technical differences between Newzbin and FTD. Newzbin is an NZB search engine through which you find codes to directly download from Usenet. FTD is a forum where people ‘spot’ movies using messages in ordinary Dutch.”

FTD had argued that it was not guilty of “making available” because copyrighted files on Usenet are not under its control – it does not control the servers and it has no influence over potential downloaders. The court decided that this is irrelevant. What is important, it said, is “whether the behavior of FTD allows users to download copyrighted files (in an easier manner) and thus makes such files available to the public.” The court ruled that it did.

“This is a collaboration between FTD and its users where they knowingly provide access to unauthorized files,” BREIN director Tim Kuik said in a comment. “It’s clear that this is more than just talking about files like FTD wants people to believe.“

In October this year FTD will face another court case. Dutch anti-piracy group BREIN says that FTD “organizes and promotes” Usenet content, most of which is illegal, and wants the entire site shut down.

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