This week the appeal was heard before the Amsterdam court. BREIN’s lawyer tried to convince the judge that the three are responsible for the site’s daily operations. Lawyer Ernst-Jan Louwers on the other hand represented the Pirate Bay defendants, arguing that BREIN sued the wrong people.

In addition, Louwers revealed that BREIN brought in a credit report, apparently faked in an attempt to mislead the court. The report in question shows Fredrik Neij as the CEO of Seychelles-based Reservella, the company believed to own The Pirate Bay.

This misstep by BREIN was pointed out to the court, and former Pirate Bay spokesman Peter Sunde later wrote a detailed article summing up the inconsistencies. Now, a few days later everyone can see for themselves that the report is not what its supposed to be.

The documents prooving that the evidence presented by BREIN was false have now been exposed, on The Pirate Bay of course. The ‘leaked’ torrent (mirror) contains the following information:

- A fax of the Experian report as sent by BREIN.
- A pdf version of the Experian report with the unedited footer.
- A fax from Mossack Fonseca stating that they never acted as registered agent as the report claims.
- A document from the authorities stating that the company registered with the ID 32549 is NOT Reservella.

TorrentFreak contacted BREIN for a response to the alleged misstep, and director Tim Kuik told us that the Experian report was not used by their lawyer in court because there was already sufficient evidence that Fredrik, Gottfrid and Peter are responsible for The Pirate Bay.

“Denying their responsibility and playing hide and seek is what the gentlemen of The Pirate Bay have been doing since they began their illegal business”, said Kuik. “We have sufficient reason to assume that they are still responsible.”

“The company in the Seychelles looks like a thin veil to cover up what is really going on and it appears that they too like to play hide and seek just like the gents from The Pirate Bay,” he added.

The lawyer for the defendants totally disagrees with BREIN’s assessment. Aside from BREIN’s alleged attempt to fabricate evidence, he told the court that the three defendants are not the owners of the site. Even if they were, The Pirate Bay in itself is not illegal because it’s merely one of many distribution platforms that are available on the Internet, the lawyer told the court.

Whose side the court will take and whether or not the alleged attempt to manipulate evidence will be taken into account will be known in two weeks, when the appeal verdict is set to be announced.

Article from: TorrentFreak, check out our new blog at FreakBits.

After the verdict was made public, the three defendants immediately announced they would appeal.

Lawyer Ernst-Jan Louwers represented the Pirate Bay defendants in the appeal today, and he revealed that BREIN brought in documents that are apparently faked in an attempt to mislead the court.

BREIN submitted a report on Reservella to the court. Reservella is the company that planned to sell The Pirate Bay to Global Gaming Factory, and according to the report that was apparently written by UK company Experian, one of the Pirate Bay founders is the company’s CEO.

However, the defendants lawyer presented several facts that showed that the report is not what it claims to be.

“The report is an attempt to mislead the Court,” Louwers said, adding that the Court should reject it since it’s “fake, deceptive and completely unreliable.”

The lawyer went on to argue that the anti-piracy outfit is merely trying to save face, and that BREIN will do all it can to succeed in their crusade against the three defendants. He then goes through a list of several points that show why the evidence is fabricated.

First of all, the Experian report on Reservella seems to have copied the Whois data of the Pirate Bay domain. It lists defendant Fredrik Neij as the CEO and the formation date for the company is identical to the date when the domain was registered.

This makes no sense, as Reservella was founded less than a year ago according to official information from the Seychelles Government, and Neij is not linked to the company as the report claims.

If that isn’t enough already, the company ID number as reported in the document is incorrect, and the claims that Fredrik Neij is a citizen of the Seychelles are even more absurd.

Former Pirate Bay spokesman Peter Sunde is outraged by BREIN’s attempt to cheat their way into a victory, and will press charges against BREIN and its director Tim Kuik.

“I consider what they have done as criminal. Much more severe than any ‘aiding with potential copyright infringement’ could ever be,” he writes, adding “Maybe then we can finally have the real criminals shut down and put in jail!”

In his writeup Peter himself sums up various other points showing that the document is apparently false.

All in all there seems to be clear evidence that the report is highly inaccurate. Even if all the errors can be attributed to the research company, BREIN should have known better since they have been tracking The Pirate Bay’s every move for years.

Developing story…

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In a response to this new setup, Dutch anti-piracy outfit BREIN asked Leaseweb to stop passing on traffic to the world’s largest BitTorrent tracker.

Although Leaseweb doesn’t allow torrent sites to be hosted on its network, they also said that they are not responsible for traffic they pass on to other parts of the Internet, and as such have no plans to disconnect The Pirate Bay.

“The Pirate Bay is hosted on a different autonomous system (AS). LeaseWeb is not the host, and our client [NForce] is not hosting The Pirate Bay either. We are only the IP Transit supplier, or carrier of Internet traffic for a company that uses our carrier services,” Alex de Joode, Security Officer of Leaseweb told ISPam.

BREIN of course disagreed with Leaseweb’s position and demanded that Leaseweb’s client NForce stopped routing traffic to The Pirate Bay. And they succeeded. A few hours ago NForce disconnected The Pirate Bay and at the time of writing the site is inaccessible in most parts of the world, if not all.

“We summoned NForce to stop the routing and they complied,” BREIN director Tim Kuik said in a response.

This case is a rather unique one that sets a disturbing precedent. In fact, it’s the first time that an ISP that merely routes traffic has decided to disable access to a BitTorrent site. In theory this could make it very easy for BREIN to shut down hundreds of other BitTorrent sites that are routed through Dutch networks, if they can strike enough fear into carriers.

There is no doubt that The Pirate Bay will resurface soon with a slightly altered setup, but if anti-piracy outfits such as BREIN start to go after data carriers it will become increasingly difficult to find alternatives.

Update: The Pirate Bay crew told TorrentFreak that the site will be back online with 4 new transits tomorrow. The current downtime is not (only) related to the routing issue, but rather with the new hosting company. Everything should be back to normal soon.

Article from: TorrentFreak, check out our new blog at FreakBits.

Today, the judge ruled that the world’s largest BitTorrent indexer has been ordered to clean up its site and remove all torrents that link to infringing content.

BREIN’s intention was not to shut down the site. Instead, the organization called for a filter based on infringing keywords and possibly digital fingerprints to guarantee that the rights holders have sufficient means to protect their content.

The court agreed with BREIN’s assessment that Mininova is not doing enough to protect the rights of copyright holders, and ordered the site to remove all torrent files that link to infringing content within three months, or pay a penalty of 1000 Euro per infringing torrent with a maximum of 5 million euros ($7 million).

Mininova’s notice and takedown policy that allows copyright holders to remove infringing torrents is not sufficient, the court said. Interestingly, the recently announced copyright filter that Mininova launched together with the Motion Picture Association (MPA) wasn’t mentioned in the verdict.

The court did not agree with Mininova’s defense that it is impossible to moderate all torrents that are uploaded to the site. It further said that Mininova is encouraging its users to download copyrighted material, helped by the several moderators that the site has in place.

The moderators keep the site clean and ‘family friendly’ by removing torrents that link to adult content, viruses and fake files. They do this proactively and in response to user feedback, the court concluded, pointing out that they should also be able to moderate torrents that link to copyrighted material.

It was further concluded that Mininova profits from copyright infringement though the ads that appear on the site.

Mininova co-founder Erik Dubbelboer said in a response: “We are obviously not happy with the verdict.” Mininova is considering to appeal the decision, which they have to do within three months

Developing story.

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GGF’s proposed notice and takedown is in fact not very different from those operated already by sites such as Mininova. What they add is the option for copyright holders to keep their content on the site and get paid for it. Plus, the users have to pay a monthly fee to use the site.

As one of our commenters put it yesterday: “Cool, a paid private tracker without dedicated servers or seed-ratio enforcement, and with arbitrary censorship.”

And the users of the site are not the only ones who are complaining. In response to GGF’s plans, Dutch anti-piracy outfit BREIN, that acts on behalf of the music, movie and gaming industries, issued a press release today in which they argue that the plans for the new Pirate Bay are not sufficient to please the copyright holders.

“In the proposed system the right holder must detect illegal content on the website and remove it. That is insufficient,” BREIN director Tim Kuik says. “This sort of Notice and Take Down system works in case of incidental infringement but not for the structural infringement that happens at The Pirate Bay.”

“The point is that The Pirate Bay is responsible for what happens on the site. They must keep preventive supervision and take care that no illegal torrents become available on the site. The site provides access to content which to an important and even overwhelming extent is illegal,” Kuik continued.

“So they can not assume that there is permission and leave it up to the right holders to check continuously for infringements. It is their site, their business and so their job to clean it up and keep it clean”, Kuik added, demanding a stricter removal system.

BREIN’s response makes sense from their perspective, since they have a pending court case in which they demand a proactive content removal system from the Dutch-based torrent site Mininova, who already have quite an elaborate content removal system in place.

GGF’s CEO was contacted for a comment on BREIN’s response, and we will add that to the article once it comes in. It is clear though that not all copyright holders are wildly enthusiastic about the plans for the new Pirate Bay.

Article from: TorrentFreak, check out our new blog at FreakBits.

BREIN had successfully convinced the FIOD-ECD – Fiscal Investigation Unit of the Dutch Police – to shut down both sites and take the servers into custody for a thorough inspection, hoping to find traces of criminal activities.

When the case finally went to court, the result for BREIN and the FIOD-ECD was a disaster. The admin of ShareConnector was found completely innocent and just a couple of small fines of approximately $350 were handed out to the admins of Releases4U for uploading copyright material.

The court ruled that FIOD-ECD failed to provide any evidence to prove ShareConnector was involved in copyright infringement nor enough to prove that either organization was criminal in nature. In addition, the judge ruled that the initial arrests were unlawful as the evidence provided by BREIN was insufficient.

Despite this setback the Department of Justice announced back in 2007 that it would appeal the verdict, but in the years that followed nothing happened, until today. More than two years after the ShareConnector admin was released from all charges, the Department of Justice filed the appeal.

One can only wonder why it took this long. The case itself and the evidence presented during the trial hasn’t changed. In fact, the only thing that’s changed is the media attention on file-sharing cases and the increased efforts of organizations such as BREIN to take on sites that host links to copyright infringing works.

The ShareConnector admin, who briefly put his site back online in 2007 before BREIN managed to close it through a civil dispute, told TorrentFreak that he was surprised to find out that the case will be appealed after all.

“It’s understandable that the DoJ tries everything in their power to cover up their illegal, unprofessional and unfair doings by spreading misinforming propaganda in the mainstream news. They can’t deal with such issues because they don’t know what the Internet is about, nor do they seem to care,” the admin told TorrentFreak.

“They failed before and they will fail again. It’s about time they realize that you can’t control the future, if you don’t understand the past,” he added.

Besides the appeal of the criminal trial, ShareConnector will also be facing BREIN again as the site’s admin decided to appeal the earlier decision that forced him to close the site. “This year is really packed with lawsuits for me with hopefully some conclusive results about the legality of eD2k indexing sites in the Netherlands,” he writes.

Article from: TorrentFreak, check out our new blog at FreakBits.

For now the verdict has been put on hold by BREIN, allowing the three defendants to appeal. Nevertheless, because of the legal issues between the two parties, an encounter between the head of BREIN, Tim Kuik and Pirate Bay co-founder Gottfrid Svartholm that took place at Hacking at Random (HAR) this Friday was a rather interesting one.

Tim Kuik participated in a panel discussion on copyright laws and the future of media distribution at HAR, and halfway through he was standing face to face with Gottfrid Svartholm, one of the founders of The Pirate Bay. Svartholm, who had been following the discussion in the audience, took the opportunity to confront Kuik with some of the allegations he made.

Svartholm started by asking if BREIN actually has any evidence that The Pirate Bay is making ‘a lot’ of money from distributing copyrighted works, as they claim. “Can you please tell me where that profit is, because i’d like some of it,” he asked, which resulted in applause and cheers from the audience.

“You tell me, you’re here, somebody paid for your trip,” Kuik quickly replied in an attempt to turn things around, implying that Svartholm must have used Pirate Bay revenue to make his way over to The Netherlands.

Svartholm, who currently works as a software programmer in Asia where he earns his living, then replied, “I paid for this trip by developing computer software for my customers,” which was again followed by applause from the audience.

Kuik found his argument crushed so reverted back to the earlier question about profits. “Everybody knows, including yourself, that you’re selling advertising space on your website, and people pay you for that,” he said.

Kuik went on to say that a Swedish investigative journalist found that The Pirate Bay made hundreds of thousands of kroner every year. To some this may sound like an impressive figure, but 300,000 kroner ($40,000) may not even be enough to cover the hardware and bandwidth costs, so it doesn’t prove that there’s any profit.

From Kuik’s responses it seems that BREIN has no evidence at all that The Pirate Bay is as profitable as they claim it is, so Svartholm went on to ask Kuik about the defamation lawsuit that the former Pirate Bay founders started against him and his organization.

The head of BREIN is being sued by TPB in Sweden for defamation, after Kuik claimed that the Pirate Bay founders were responsible for an alleged DDoS attack on BREIN’s website. In Sweden, Kuik is now facing up to two years in prison, and Svartholm wanted to know if he plans to show up.

In his reply, Kuik denied that he ever attributed the DDoS attacks to the people behind the Pirate Bay, but he said that it was a coincidence that their website was hit right after the case against TPB was announced to the press. Svartholm of course questioned Kuik’s denial, but he never saw his original question answered.

In the end, Kuik never answered any of the questions posed by Svartholm, but the face to face standoff between two people at the extreme ends of the copyright debate was an interesting one nonetheless. After the panel discussion, Tim Kuik and Gottfrid Svartholm set their differences aside for a brief moment, as they posed for the cameras.

The video of the HAR panel discussion is available in OGG and on Vimeo (Gottfrid at 30:20).

Article from: TorrentFreak, check out our new blog at FreakBits.

The three defendants, who claimed not to have known about the case until it was heard, were surprised by the harsh verdict and immediately announced they would appeal. In the days that followed they’ve been looking for legal representation which they have now found in Louwers IP|Technology Advocaten law firm.

Lawyer Ernst-Jan Louwers is representing the Pirate Bay defendants in the appeal, and in just a few days he has already scored a small victory. Thanks to an early intervention from Louwers, BREIN decided to back down and allow the site to be accessed by Dutch visitors without any penalties. The two parties agreed to a standstill until the appeal has been dealt with.

Louwers told TorrentFreak that he is still waiting for the official case documents to come in, but that based on what has been reported in the media there are plenty of opportunities for a successful appeal. “For one, it is doubtful whether BREIN actually sued the right people,” Louwers said referring to the fact that the defendants are not the owners of the site.

The verdict claims that The Pirate Bay doesn’t have a registered owner, yet holds the three accused responsible for it. However, it is no secret that the site is in fact owned by and registered to a company called “Reservella” and not any of the defendants named in the case.

To add to this, it is likely that Reservella will sell The Pirate Bay to GGF on August 27, which means that the three defendants named in the verdict are even less associated with the site than they were before. Combined with the announced standstill, this means that they will escape paying penalties even if the appeal goes bad.

In the coming week Louwers will review the case documentation and plan the defense strategy for the appeal, he told us. He expects that it is just a matter of weeks before the appeal is dealt with, and until then the site will remain accessible to Dutch users.

Article from: TorrentFreak, check out our new blog at FreakBits.

The judge arrived at this verdict because the three defendants failed to appear at the Amsterdam court. This, despite the fact that they were never officially summoned by BREIN and claimed not to know about the case until after it was heard.

However, the court ruled that the anti-piracy outfit did enough to inform the three Pirate Bay representatives of the case, which ended in a default win for BREIN without the actual content of the case being properly reviewed.

Because of this decision, all Dutch users will have their access to the Pirate Bay site and tracker restricted because it can be used to distribute illegal content. A dangerous precedent, which may lead to the closure of all public roads in The Netherlands, because some people are speeding.

In a response to the verdict, the Dutch Consumers Union says it is disappointed that the content of BREIN’s demands was not reviewed. “The Consumers Union is disappointed that the court has taken substantial and drastic action without reviewing the content of the demands,” they say.

If the court had done so it might have reached a different conclusion, not least because the site is not owned by any of the defendants named in the case, but by a company called “Reservella” based in the Seychelles. That aside, the three defendants never shared any copyrighted material themselves, as the ruling suggests.

Pirate Bay spokesman Peter Sunde, who resigned earlier today, told TorrentFreak that he and the other defendants will do everything they can to revoke the judgment. He is currently talking to a legal representative on how to proceed. More on this later.

Article from: TorrentFreak, check out our new blog at FreakBits.

Interestingly, the news came as a total surprise to Fredrik, Gottfrid and Peter who said they received no official summons and were not aware of the case. In a counter move, the three sent a letter to the Amsterdam court, asking it to dismiss the case and impose damages against BREIN instead.

Today, the verdict was made public and The Pirate Bay has lost the case. The judge ruled that The Pirate Bay has to stop all of their activities in The Netherlands within ten days. If they don’t comply all defendants will be ordered to pay 30,000 euros ($42,300) per day in penalties up to a maximum of 3 million euros ($4,231,000) total.

The court argued that BREIN had done enough to inform the three defendants about the court case, although they were never officially summoned. In a letter to the court the defendants had indicated that if they had know, they wouldn’t have the financial means to attend the hearing. Because of this the court issued a default judgment and gave in to BREIN’s demands.

Pirate Bay spokesman Peter Sunde, who is one of the defendants told TorrentFreak that they will appeal the decision, and that they are currently looking for legal representation.

Interestingly, the verdict claims that The Pirate Bay doesn’t have a registered owner, but holds the three accused responsible for it. However, as we’ve reported previously the site is in fact owned by a company called “Reservella” and not any of the defendants named in the case.

In addition to the three founders, GGF, the intended buyers of the Pirate Bay were also ordered to pay 30,000 euros ($42,300) per day in penalties if they continue to operate the site as it is after the deal is closed.

Legal experts informed TorrentFreak that the current ruling can be largely attributed to the lack of defense, and the fact that the defendants failed to show up. With this ruling in hand, it is not unlikely that BREIN will put pressure on Dutch ISPs if the Pirate Bay doesn’t block Dutch visitors within 10 days.

Article from: TorrentFreak, check out our new blog at FreakBits.

Today, the verdict in the case will be announced to the public, and Peter Sunde who is named in the case for his involvement with The Pirate Bay decided to call the Amsterdam court to get a copy. Shockingly, they refused.

“They told me to call BREIN to get the verdict,” Pirate Bay’s Peter Sunde told TorrentFreak. This is strange to say the least since it is BREIN who they have a dispute with.

“You should really look into how the Dutch legal system works,” one of the court employees told Sunde over the phone.

Sunde, who wasn’t aware that he was summoned to court until after the case was heard was baffled by this response. “They say that we were supposed to be there and that BREIN has signed papers from us saying that we knew about the case,” he told us.

After calling back several times, and threatening to press charges for violation of human rights, the court finally agreed to fax Sunde a copy of the verdict. More updates on the verdict will be published as soon as it arrives, if it ever does.

Update: Peter Sunde got the verdict eventually and it’s not good.

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Interestingly, the news came as a total surprise to Fredrik, Gottfrid and Peter who say they received no official summons and were not aware of the case until they were notified by a journalist – after it was heard in court. In a counter move, the three have today sent a letter to the Amsterdam court, asking it to dismiss the case and impose damages against BREIN.

“We would like the Dutch court to [...] make sure that these power hungry corporations and organizations can not abuse their power and financial muscles against private people that criticize the way these companies behave towards the public. It is not acceptable behavior and we urge the court to put an end to their madness,” they write in a letter to the Amsterdam court.

In addition, Tim Kuik, the head of BREIN is now being sued by the three in Sweden for slander, libel and defamation, after Kuik claimed that the Pirate Bay founders were responsible for an alleged DDoS attack on BREIN’s website. In Sweden, Kuik is now facing up to two years in prison, high damages and fines.

“I am sure there will be no other outcome for this except that Mr. Kuik will have to make an apology and also pay fines for his crimes,” Pirate Bay spokesman Peter Sunde said in a comment.

In their letter Peter Sunde, Gottfrid Svartholm and Fredrik Neij explain in detail why they think the case should be dismissed. “We’re very certain the court will have to throw the case out the window,” Gottfrid Svartholm said.

Fredrik Neij added: “None of us live in The Netherlands, operate from there or even own the site they are suing over. There are so many errors in this lawsuit that it’s almost a crime to spend the court’s time this way!”

Indeed, apart from the fact that the three were summoned through Twitter and Facebook where they get hundreds of messages a day, none of them is actually the owner of the site itself. “The owners are a company called RESERVELLA, not anyone of those mentioned in the lawsuit,” they informed the court.

The Pirate Bay founders and spokesman will now await the response from the Amsterdam court, and BREIN frontman Tim Kuik can look forward to a letter from the Swedish court inviting him to make a trip to the home of The Pirate Bay.

If the Dutch court decides to award damages to The Pirate Bay, they founders say they want the money to go to the Dutch Pirate Party. “Since the need of this organization is made obvious by a case like this,” they informed the Court.

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At the Amsterdam court BREIN’s lawyer demanded that the operators of the site block access to all Dutch visitors. The lawyer claimed that The Pirate Bay is assisting in copyright infringement by allowing millions of visitors a day to download copyrighted content. Interestingly, Global Gaming Factory – the Swedish company likely to take over the site in a few weeks – was also added to the lawsuit.

The relevance of this case remains to be seen. The defendants, who were summoned to court through Twitter and FaceBook, were not present at the hearing and it’s certainly possible that they remain unaware of the proceedings. That aside, the site itself is currently scheduled to change ownership at the end of the month, and go legal, so that will render the case useless.

The Pirate Bay is no stranger to having visitors blocked access to the site. IFPI took legal action in Denmark and more recently in Norway to accomplish a similar block in those countries. However, in these cases, legal action was taken against ISPs and not the operators of the site itself.

Whether or not this Dutch strategy is going to work out is unclear. Meanwhile, BREIN’s website is still suffering from the alleged DDoS attacks that started after the outfit announced its legal proceedings against The Pirate Bay. The judges will now review BREIN’s demands – the verdict is due on July 30th.

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BREIN says that FTD operates illegally but the Usenet community and its specialist IT lawyer, Arnoud Engelfriet of Ictrecht law firm vigorously deny this and are now taking legal action the Dutch anti-piracy outfit. The background to the case can be found in our earlier article, and a more detailed report on the action against BREIN here.

Yesterday, while BREIN’s site was still supposedly out of action following an alleged (or Hoaxed) DDoS attack from Pirate Bay fans, it published a further report about FTD, which was hidden on its site away from easy public viewing. Strangely the same page at the time of writing is password protected and the report unavailable, but we have a copy and translation.

Entitled ‘BREIN Demands Closure of FTD’, the anti-piracy outfit went on to say that if FTD does not close it will require a penalty of 50,000 euros ($70,000) per day against the service, in addition to compensation and full reimbursement of costs. BREIN said that FTD “organizes and promotes” Usenet content, most of which is illegal.

BREIN then refers to earlier discussions it had with FTD, noting that it asked FTD to cease its “structural use of illegal content” in early 2009. The two sides had entered discussions to see if they could iron out their difficulties. Following on, FTD pro-actively modified how they operate to ensure that there could be no doubt as to their legality.

“After we made the changes, we got complete radio silence from BREIN. No confirmation, no rejection, nothing,” Arnoud explained. “Only after several days we found out what BREIN thought – but only by reading the online news. That was a huge disappointment.”

The news saw BREIN declare that FTD was a criminal operation in an article titled “You do not pay for it, it’s unlawful” and this led to FTD taking legal action against BREIN to try to clear their name by having their operation declared legal by a court. Now BREIN is counter-claiming against FTD.

Tim Kuik from BREIN now says that it is clear that FTD “continued their abuses unabated” and that the modifications they made were only made to hide the “true nature” of the site.

“It is a wolf in sheep’s clothing,” said Kuik. “FTD earn money with a system that exists by virtue of the huge supply of illegal content to Usenet.” Mirroring the disappointment felt at FTD, Kuik added: “It is disappointing but illustrates that BREIN’s outstretched hand has been cut off.”

So what exactly does this claim for 50,000 euros per day mean for FTD? Lawyer Arnoud Engelfriet told TorrentFreak that BREIN did not ask the court for damages. Legally they are barred from asking for damages – article 3:305a of the Dutch Civil Code says that an organization that represents the interests of a certain group can never ask for damages. They asked instead for a penal sum of 50k euros if FTD were ordered by the court to shut down but it refused.

“The idea is that a court can order you to shut down but you can ignore the court,” said Arnoud. “With the penal sum, you risk that the court will then sell your house or seize other assets. In principle that’s legal, but the amount is of course ridiculous.”

“Ridiculous also sums up my view of the BREIN counterclaim. Instead of addressing any of the points we raised, they simply repeat their standard rhetoric. Nowhere is the distinction made between uploading works and telling people that someone has uploaded a work for (legal) download. And downloading illegal uploads is legal in the Netherlands,” notes Arnoud.

“BREIN is not known for its careful handling of the truth,” he added. “They are a propaganda organization after all.”

Article from: TorrentFreak, check out our new blog at FreakBits.

Hinting at The Pirate Bay, BREIN also suggested that Mininova should ban torrents using trackers that are known to track a variety copyright infringing content. However, in an attempt to solve this issue more directly, the anti-piracy outfit is suing the operators of the site, demanding that they block access to Dutch visitors.

Claiming that the founders of the site are untraceable by the Swedish authorities, head of BREIN Tim Kuik hopes to get a hold of them via the Internet. “You can find the defendants on Facebook and Twitter. Internet works for enforcers as well as infringers. Now they know about the court case in The Netherlands,” Kuik said.

BREIN’s methods are a little unusual to say the least. Instead of ordering ISPs to block the site like IFPI did in Denmark and more recently in Norway, they sue the founders of the tracker instead. Not to mention the idea of serving The Pirate Bay team using Twitter and Facebook.

There are no public mentions of the summoning in any of the public profiles of the Pirate Bay Founders so we assume that they did so via direct messages. Meanwhile, BREIN’s official site seems to be suffering from a DDoS attack, but this is of course totally unrelated to the announcement of the anti-piracy outfit.

Developing story…

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BREIN’s lawyer Dirk Visser told the court that Mininova aids in the distribution of copyright infringing works, and demanded that the site implements “preventive measures” to put an end to this. It is important that Mininova covers the costs of these measures, they say.

When we posted our article summarizing the pleas of BREIN and Mininova’s lawyers we didn’t have access to the exact texts. We do now, and there are a few interesting details in the demands made by BREIN’s lawyer that are worth mentioning.

Not only did BREIN demand a filter based on infohashes of ‘copyrighted’ torrents, they also called for a filter based on infringing keywords and possibly fingerprints. Even more worrying though, is BREIN’s suggestion that Mininova should ban torrents from public BitTorrent trackers that mostly link to copyright infringing content, hinting at The Pirate Bay’s tracker.

Banning torrents that use The Pirate Bay’s tracker is of course an absurd suggestion. No public tracker controls who can use it, so BREIN essentially wants to ban public BitTorrent trackers from Mininova altogether.

The second ‘demand’ (or suggestion) not mentioned in our previous coverage is perhaps more realistic. BREIN’s lawyer suggested that Mininova should ban the accounts and IP-addresses of uploaders who frequently upload torrents linking to copyrighted material, referring to the hibernating uploader aXXo as an example.

Demands aside, Visser also told plain lies to the court. In his plea he referred to aXXo telling the court that he was thanked by Mininova for his uploads, and rewarded with ‘VIP uploader’ status. However, VIP uploaders or any kind of special uploader statuses do not exist on Mininova, and they never have either.

The implications of this distortion of truth are unclear. Mininova’s lawyer didn’t come back to it in her plea because of time constraints, so it probably went unnoticed by the judges too. The verdict in the case is due on July 15. There is no doubt that this case will have huge implications for other BitTorrent indexers hosted in The Netherlands, for better or worse.

Article from: TorrentFreak, check out our new blog at FreakBits.

Mininova’s lawyer argued that the site is already taking measures to ensure rights holders can protect their content, and this amounts to more than they are required to do under the law. The site has a ‘notice and takedown’ policy and recently started offering an infohash filter where content owners can blacklist torrents.

Mininova’s case against BREIN was heard at the Utrecht court. Three judges have been appointed to the case. One of them is a replacement for a judge who was taken off the case a few weeks ago because he was connected to the entertainment industry. The hearing started at 1 PM with BREIN’s lawyer Dirk Visser.

Visser began by informing the court that Mininova has over 5 million daily users who use the site to download copyrighted content. A brief look at the site’s homepage clearly shows that they link to illegal content, and their business models is to make money off the millions of ads that are displayed, he said.

Mininova’s attempt to offer a distribution platform to publishers through their “featured content” section is nonsense, BREIN’s lawyer insisted. According to research conducted by BREIN 92% of the torrents on Mininova point to ‘illegal’ content, and the tag cloud with popular searches also shows that illegal content is what people are mainly looking for on the site.

In 2006 and 2007 BREIN and Mininova had lengthy discussions on how to deal with copyrighted content, Visser said. Mininova wanted BREIN to come up with specific infohashes that should be in the filter, and BREIN wanted Mininova to cover the costs. They never reached an agreement and the negotiations ended.

All in all Visser is arguing that Mininova aids in distributing copyright infringing works, and BREIN demands that the site installs a filtering mechanism that will put an end to this. Mininova will have to cover the costs of such a copyright filter themselves, they say.

Next up was Mininova’s lawyer Vita Zwaan. She started out by informing the court that this is a landmark case because it’s the first to make a judgment about the legality of the BitTorrent platform in The Netherlands, pointing out that this case obviously has far reaching consequences.

Zwaan further told the court that, while the hearing was taking place, approximately 180 torrents would be added to the site’s database and that Mininova has no knowledge of the content currently tracked by these torrents. In addition Zwaan explained that Mininova has partnerships with content owners to distribute works though their distribution platform.

On top of this, Mininova offers several options for content owners to take ‘infringing’ torrents off the site, the lawyer explained. Together with the Motion Picture Association (MPA), Mininova started experimenting with a content filter through which torrents can taken off the site by the content owners.

The filter trial is a success according to Mininova’s lawyer, who quoted one of TorrentFreak’s recent articles to point this out. BREIN also had to option to participate in the filtering trial so they could see for themselves how it works, but BREIN rejected this offer.

It is unclear what BREIN’s demands actually are according to Zwaan. They want Mininova to implement “preventive measure” but are vague about the details. However, BREIN doesn’t want to provide the info-hashes for the torrents it wants removed, and argues that this is something Mininova should do themselves. This is the opposite of what the MPA (a member of BREIN) is doing now.

According to Mininova’s lawyer, this disagreement on who should provide information on what to filter is what the case is all about.

A keyword filter that was proposed by BREIN is unworkable according to Zwaan because it would result in too many false positives. A filter for the keyword ‘office’, as BREIN suggested, would result in the removal of 92 torrents linking to “Open Office” she said.

Mininova’s lawyer then discussed some of the costs Mininova made thus far to take down torrents upon request from copyright holders (though the old system). She said that 155,876 takedown requests have been reviewed which cost the site 250,000 euro ($350,000). In addition, Mininova invested several thousand euros in the content filter.

Zwaan went on to explain that Mininova is not a necessary nor sufficient part of the BitTorrent download process. Unlike The Pirate Bay they don’t host a public tracker, and neither do they offer a BitTorrent client through which users can download torrents. BREIN argued otherwise and this is incorrect Zwaan said.

Towards the end of her plea, Zwaan argued that Mininova is not infringing the rights of various copyright holders as BREIN stated. She cited several cases in and outside The Netherlands to make point out why, and pointed out that The Pirate Bay may not have been found guilty if they had a notice and takedown policy like Mininova has.

After a short break the hearing continued briefly and the judges asked both lawyers for clarification on some issues. Mininova’s lawyer was asked about the moderators that Mininova has, and why they remove porn but not copyrighted content. Mininova explained that the moderators handle problem reports from users (about virusses, porn, etc.), while the Mininova admins handle the copyright complaints. The site has around five moderators, a number which the changes from time to time.

After roughly three hours the hearing ended and it’s now up to the judges to come up with a decision. The verdict is due on July 15. Erik Dubbelboer and the other Mininova founders think they have the law on their side. “We have confidence in the outcome of the case and we believe Mininova will continue to exist,” Erik told TorrentFreak.

This is a developing story, info might be added.

Article from: TorrentFreak, check out our new blog at FreakBits.

The results were presented earlier this week and they were quite remarkable. A massive 93% of the surveyed respondents said they download music, movies or games from the Internet, while only 5% of this group of downloaders actually uses a paid service like iTunes.

Downloading copyrighted music or movies for personal use is not prohibited in The Netherlands, but uploading is. In most cases this means that using BitTorrent to download copyrighted music is not the best choice, since it generally requires uploading. However, this is not holding any of the Dutch youngsters back, so it seems.

BitTorrent was by far the preferred file-sharing (download) application according to the survey. More than 45% of the downloaders said they use sites like Mininova and The Pirate Bay to download the latest music and movies. Usenet came in second with a respectable 15%.

Aside from looking into their download behavior, respondents were also asked to predict the outcome of the Mininova trial. Only 15% thought that BREIN will come out the winner, while 45% thought Mininova would strike up a victory. The remaining 39% knew too little about the case to make a useful assessment.

There are of course many flaws in this type of survey. First off, respondents were recruited through online forums and even highly tech oriented communities such as Tweakers. Among these tech savvy and active Internet users the percentage of P2P-users is undoubtedly higher than average. Secondly, the survey was promoted as a “download” survey, this will of course attract the attention of those who actually download more than those who don’t.

Polls and surveys can be very misleading, especially when they are ill constructed. What we can conclude from the Dutch survey, although carefully, is that The Netherlands has quite a few active BitTorrent users and that they are confident that Mininova will beat BREIN in court. Let’s hope that a similar survey among lawyers would reach a similar conclusion.

Article from: TorrentFreak, check out our new blog at FreakBits.

Not wanting to be bullied for what it considers to be a completely legal operation, FTD took the unusual step of taking BREIN to court, after Tim Kuik, the head of the outfit, said that FTD and its operators were committing a crime. FTD’s owners and lawyers vigorously deny this claim, the details of which can be found in our earlier report.

So what led up to this legal showdown? TorrentFreak spoke with FTD’s specialist IT lawyer, Arnoud Engelfriet, of Ictrecht law firm.

“In January of this year, BREIN announced they were ‘going after Usenet’ and
specifically singled out FTD as their first target,” Arnoud told TorrentFreak.

Naturally this position was of concern to FTD, but instead of burying their heads in the sand they actually contacted BREIN with a view to discovering where their differences lay and sorting them out amicably.

“Shortly after that, FTD engaged in negotiations with BREIN to find out what their objections were and how we could overcome them,” Arnoud told us. The discussions led FTD to pro-actively modify how they operate to ensure that there could be no doubt as to their legality.

“We even voluntarily made some changes to the FTD platform to ensure there could be no doubt we were in the clear,” Arnoud explained. But their attempts to engage and negotiate with BREIN came to nothing.

“After we made the changes, we got complete radio silence from BREIN. No confirmation, no rejection, nothing,” Arnoud explained. “Only after several days we found out what BREIN thought – but only by reading the online news. That was a huge disappointment.”

Indeed, ignoring the outstretched hand and making their intentions against FTD public, BREIN chief Tim Kuik spoke with Dutch publication Volkskrant and the resulting article titled “You do not pay for it, it’s unlawful” labeled FTD’s operations criminal. “Although they [FTD] are not carrying illegal content on their servers, what FTD does is simply criminal,” said Kuik.

Usually at this point a site being bullied by BREIN would either dig in its heels and wait for the lawsuit and injunction against them, or capitulate in fear of being destroyed.

“We could have waited for preliminary injunction proceedings, which is BREIN’s weapon of choice,” Arnoud told us. But that would have taken too much time, and since preliminary injunctions leave little room for a thorough investigation of all relevant facts, the risk was that FTD could be forced to close down for all the wrong reasons.

So FTD did something quite unusual in these cases – it went on the offensive against BREIN instead.

“At that stage, we felt that doing nothing would leave the sword of Damocles over our heads,” Arnoud told TorrentFreak. “BREIN is very fond of making continuous ominous statements in the press, and that could create a FUD environment for FTD. Therefore we decided to go to court and ask for an official declaration that downloading is legal, that it’s also legal to inform people about materials to download and to offer a platform to let people inform each other,” he added.

FTD also wants a public statement from BREIN correcting its assertion that its operations are criminal, and a declaration from the court that FTD’s operations are fully legal.

“We fully expect to win our case. BREIN is big on statements but often short on facts and legal arguments to back them up,” Arnoud told TorrentFreak.

“We have the law and the facts on our side.”

Article from: TorrentFreak, check out our new blog at FreakBits.

On TorrentFreak we’ve also had issues with BREIN after they labeled us a ‘pirate weblog’ and then used material from our site without proper attribution. Our legal counsel had to jump in, in an attempt to stop their libelous writing and harassment of smaller website operators.

As expected, this didn’t have much effect, and BREIN continued their operations claiming a few dozen victories by shutting down smaller torrent communities. They usually operate by sending emails to the site’s admins or hosting providers claiming that their activities are illegal, ordering them to shut down or face legal action.

Besides torrent sites, BREIN is also targeting Usenet indexers, claiming that they assist in copyright infringement. The NZB files found on many of these sites can be considered as Usenet’s answer to .torrent files as they point to content hosted elsewhere. They also make the otherwise-complicated Usenet downloading process relatively easy to master. BREIN does not like the fact that NZBs bring Usenet to the mainstream and considers sites hosting those files to have the same function as torrent sites and is targeting them in much the same way.

One of the NZB sites threatened by BREIN is BNI-online. The site received an ultimatum, with BREIN ordering them to stop their ‘illegal’ activities within 48 hours or be taken to court. The site has responded to this request and ceased its operations.

Splendid, the site’s founder explains that BREIN’s threats are one of the reasons for closing down the site. At this point we can not confirm that any other sites have closed after similar threats, but it wouldn’t be a surprise. Every torrent or NZB site hosted in The Netherlands will be approached by the anti-piracy outfit sooner or later.

This week, BREIN will be in court with another Dutch based site, Mininova, and TorrentFreak will of course keep you updated on the outcome and progress in this trial.

Article from: TorrentFreak, check out our new blog at FreakBits.