Since late Monday evening BREIN’s website has been offline due to a major DDoS attack. Word is that some people aren’t happy with the recent activities of the Hollywood-backed group and have taken the distribution of justice into their own hands.

While that might be a logical assumption there is currently no evidence to prove that is the case. That said, retaliation and revenge is often the motive for DDoS attacks. But if we’re looking for likely culprits on that basis, the potential list of instigators – considering the number of sites BREIN has taken down – would be huge.

Nevertheless, accusatory fingers are already being pointed by BREIN. According to Tim Kuik the DDoS is a revenge attack following his company’s involvement in the takedown of the FTD Usenet community recently.

“Supporters of FTD are probably behind the attack,” Kuik said. “We think that because the timing of the closing of FTD and the beginning of the attack exactly coincide,” he added. BREIN has been logging the IP addresses of the attackers and they apparently originate from The Netherlands.

However, Arnoud Engelfriet, the lawyer who defended FTD in their case against BREIN, said that FTD were not in favor of the assault.

“FTD deplores the DDoS attack as this isn’t the way to fight BREIN,” Engelfriet told TorrentFreak. “Executing DDoS attacks only strengthens the image that filesharing or downloading is a criminal activity, which does not help the cause.”

While it’s possible that the demise of their community prompted a minority of FTD fans to take the law into their own hands, they’re not the only ones crossing BREIN from their Christmas card list.

In January, BREIN managed to aggravate a whole bunch of warez Scene members when they seized the servers of the Swan topsite. Hate levels increased again in February when BREIN took down around a dozen Usenet sites. Add this to hundreds of smaller sites taken down last year and it starts getting to the point where it’s easier to make a list of supporters than enemies.

This is not the first time that BREIN has suffered an attack on its web presence and then publicly linked it to a site it had previously targeted. In 2009, the founders of The Pirate Bay threatened to sue BREIN in Sweden after Tim Kuik accused them of carrying out a DDoS attack against his company’s site.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

BREIN is now reporting that it has just forced the closure of 11 Usenet-related sites with a combined membership in excess of 900,000. As usual the Netherlands based outfit has refrained from formally naming its targets on its website in order to starve them of publicity should they choose to bounce back with new hosts. However, at least eight sites – nzbkingdom.net, Twilightnzb.com, Furiousnzb.net, Shreknzb.com, Team-Casanova.com, Crosspost.nl, Cobra-team.nl and FTAClub.net – are displaying messages which indicate interference from BREIN.

According to Webwereld, Dutch Binaries Program remains up but has ceased reporting the location of unauthorized content on Usenet. Other sites listed as affected include Movie2b and D4D.

The closures come hot on the heels of BREIN’s victory against the 500,000 member FTD Usenet portal earlier this month. Although FTD didn’t host or even link to any copyrighted material, after a prolonged legal battle a court ruled that the site was illegal because just 13 FTD members from more than half a million not only reported the location of infringing files on the worldwide Usenet system, but also uploaded them there. FTD will shut down March 1st.

However, despite the overall defeat for FTD, the court proceedings showed that the site didn’t breach copyrights, that the overwhelming percentage of its users acted legally and that the ‘spotting’ (reporting the location) of copyright material is also within the law.

So, the big question is this. When BREIN waved the FTD verdict at these sites and/or their hosts in order to force closure or compliance, had they previously gathered evidence to prove that members of these sites had been uploading content to Usenet?

TorrentFreak posed this very question to BREIN boss Tim Kuik this morning but we have yet to receive a response. However, for lawyer Arnoud Engelfriet, who has intimate knowledge of the law in this area through his connections with FTD, things aren’t so cut and dried.

“BREIN is using the FTD verdict to threaten other sites into closing. Even though the verdict clearly said downloading is legal and ‘facilitating’ downloading is legal as well, BREIN is now saying that sites that provide NZB files are facilitating illegal downloading,” he explained.

“This is a gross misrepresentation of what the verdict was actually about. Unfortunately it’s typical for BREIN to present their own view rather than the facts in order to force sites offline.”

The verdict in the FTD case clarified some points of law in The Netherlands, including the legality of downloading material even if from an illegal source. The court also concluded that facilitating downloading, even when this is done from an illegal source, cannot be unlawful.

Nevertheless, when an intimidating Hollywood proxy comes knocking on your door, shutting down is clearly an option being favored by many.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Two years ago, FTD turned the tables on Dutch anti-piracy BREIN by taking the outfit to court. FTD asked the court to declare that it operates within the boundaries of Dutch law, and further requested BREIN to retract an earlier statement that the Usenet portal operated illegally. Today the court announced its verdict, a negative one for the popular Usenet portal.

Although FTD doesn’t host or even link to any copyrighted material, the Haarlem Court ruled that the portal does provide a promotional venue for uploaders of infringing material, as they can post a description of the locations (so called spots) where these files can be downloaded.

In the verdict the court further confirmed that FTD itself isn’t breaking any copyrights, that FTD users aren’t necessarily breaking any laws either and that spotting itself is not illegal. However, the fact that uploaders of unauthorized content can ‘spot’ files is enough to deem the whole system to be illegal.

“FTD ‘contributed’ to the uploading of materials to Usenet by giving [uploaders] a platform to announce their evil deed. While only 13 of the 500,000 FTD users were identified as uploaders, the court said that that was enough. FTD is facilitating and stimulating the illegal uploading (posting) of material to Usenet and therefore committing a tort,” FTD’s legal counsel Arnoud Engelfriet informed TorrentFreak.

FTD was ordered to remove so-called spots of copyrighted files within a month. In the event that FTD fails to comply with this order they will have to pay BREIN 15,000 euros per day up to a maximum of 300,000 euros ($410,000).

BREIN welcomed the decision of the Haarlem Court, which also states that the anti-piracy outfit doesn’t have to retract an earlier statement in the Dutch press where it labeled FTD as a criminal organization.

“The principle that you are not allowed to structurally make use of illegal files with your website or service applies not only to Internet but also to Usenet,” said BREIN director Tim Kuik in a comment. “BREIN will also hold liable any other websites and services that do the same regardless of the technical protocol they use for their illegal business model.”

Today’s verdict follows an earlier court decision against the Usenet portal. November last year FTD was found guilty of promoting the illegal uploading of a Dutch movie in a separate case. Whether FTD will appeal, and what the verdict means for the continuation of FTD (and possibly all file-sharing portals) will become clear in the near future.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The “making available” in this case was FTD users reporting to their community the locations of files which exist on Usenet.

FTD lost the case when the court decided that ‘spotting’ is an activity tantamount to publishing the actual movie. An ‘ex parte injunction’ (one handed down without any FTD involvement) was issued which banned the site from ‘spotting’ the Eyeworks movie.

FTD filed an objection to the decision and in June it was heard. FTD lost again.

Yesterday both parties were back in The Hague Court of Appeals and the subsequent ruling was somewhat of a mixed bag for FTD.

“The Hague court of appeals largely reverted the verdict against FTD,” FTD lawyer Arnoud Engelfriet told TorrentFreak.

“It was no copyright infringement to offer a site for ‘spotters’ who inform each other of downloadable material. Also, downloading for strictly personal use is legal, even from an illegal source,” he added.

However, FTD was found guilty of “stimulating” (promoting) illegal uploads.

“The court accepted the argument that most spotters are actually uploaders and FTD did not rebut this argument,” Engelfriet explained.

The reason FTD were not able to defend themselves on this point is because they maintained that they simply don’t know who uploads content to Usenet, so it’s impossible to ascertain whether they are also FTD users.

The end result is that the court issued an injunction against FTD ‘spots’ of the Eyeworks movie on penalty of a 10,000 euro per day fine.

That fact that downloading for strictly personal use is legal in The Netherlands, even from an illegal source, was confirmed in another case about private copying levies.

However, the court also noted that it may actually be illegal under European law to have legislation which allows such downloading. Nevertheless, Dutch citizens are first accountable under their own country’s law so as long as it remains, downloading pirate material is completely legal.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

According to BREIN, FTD is a service which allows users to illegally download movies, TV shows and music. Interestingly, the anti-piracy outfit also claimed in court proceedings that FTD facilitates uploading.

This somewhat unusual accusation is made on the basis that ‘spots’ – reports made by FTD users which indicate where material may be found on Usenet – are made by people who also upload the material to Usenet and not innocent third parties that just happen to see material there.

In their defense, FTD argues that they are a community for spotters, who under Dutch law may download legally and hence should be entitled to point out the location of material on Usenet.

FTD insists that their users do not upload material to Usenet, but this assumption is now being tested since FTD didn’t count on ‘piracy’ being carried out by some special users in its community who were actually working for those they now face in court – BREIN.

It appears that the Dutch anti-piracy group had as many as 15 undercover investigators operating inside FTD, working as any regular members might by ‘spotting’ media. BREIN’s Tim Kuik admits that these people were on the site but insists they were there to observe how the service operates.

However, according to FTD lawyer Arnoud Engelfriet, things went a significant step further.

“Some interesting items have come to light. Most notably, the anti-piracy outfit actually posted a movie on Usenet in order to ‘spot’ it on FTD so as to claim this kind of thing happens on FTD,” Engelfriet told TorrentFreak.

The claims center around one particular ‘spy’ who went by the username of ‘NieZoekeNie’. FTD logged this user’s IP address and following checks it was traced back to an IP owned by BREIN. FTD say that the ‘NieZoekeNie’ account was operated by Mr Van Habraken, a BREIN employee.

According to site records, NieZoekeNie ‘spotted’ a movie on Usenet – Laurel and Hardy’s ‘Big’ – and reported it on FTD. However, as can be seen from the screenshot below and an actual Usenet search, a user with the very same name also uploaded the movie to Usenet.

Staff also discovered that the same IP address used by NieZoekeNie was in use on three other user accounts on FTD – hackstatic, BamBamIam and Gab2009.

The first two of this trio – hackstatic and BamBamIam – were confirmed in court as anti-piracy operatives when BREIN provided screenshots of FTD ‘in action’ but neglected to blank out the names of user accounts they used to gather the evidence.

While it could be considered a coincidence that a username associated with a Usenet movie upload could be ‘spotted’ by a different individual that just happened to be utilizing the same name, it raises an interesting issue. BREIN earlier matched some FTD usernames with those used by some Usenet uploaders and has presented that information as ‘proof’ that they are the same people.

That particular evidential knife seems to cut both ways, but BREIN boss Tim Kuik is having none of it.

“No this is nonsense. FTD appears to be trying to draw attention away from its own dubious and illegal activity with irrelevant and spurious allegations,” he told TorrentFreak earlier this evening.

“We have not nor will ever illegally upload any content. This is totally irrelevant for the case just like the previous story about putting an NZB button or torrent search function on the BREIN site. The issue at hand and before the court is the dubious and illegal activity of FTD. These allegations actually serve as a further example of FTD’s deliberate obfuscation.”

A decision in the case is expected during November.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

According to BREIN, FTD is a service which allows users to easily but illegally download movies, TV shows and music. FTD see themselves differently and state that they only allow their members to point out where such content might be found on Usenet.

A statement sent to TorrentFreak by FTD lawyer Arnoud Engelfriet of Ictrecht law firm noted that the four hour long hearing took place in the largest court room available but generated enough interest to still become crowded.

Lawyer Gijsbert Brunt began by outlining how FTD operates. He argued that FTD allows users to report or ‘spot’ where material may be found on Usenet, but does nothing more than this, adding that FTD does not upload any content to users, nor does it offer users any downloads.

Brunt further argued that FTD’s service is not even necessary to download content from Usenet and is not, as BREIN claims, an “entertainment shopping” service from where movies can be downloaded.

As part of their argument, BREIN referred to an earlier legal battle between FTD and the movie studio, Eyeworks.

In that case, a court ruled that by allowing the publication of ‘spots’ detailing the location of an unauthorized movie stored on Usenet, FTD effectively became the publisher of that movie as if they had actually hosted it on their own servers.

“The court in The Hague already determined that FTD provided access to unauthorized copies of a Dutch movie,” BREIN chief Tim Kuik told TorrentFreak in a statement.

“FTD is like a downloadshop providing access keys to unauthorized content. Therefore BREIN agrees with the court in The Hague that deemed FTD is making available without permission of the right holder and therefore directly infringing copyright itself even though the content itself is stored and downloaded from Usenet.”

Coincidentally, the appeal of that particular decision will be heard this week in The Hague. Needless to say, the outcome could prove of particular relevance to this case.

BREIN argued in court Monday that FTD is a portal which “organizes and promotes” illicit content making it easy for users to download it from Usenet. The anti-piracy group said that this “unlocking” of newsgroup content by FTD amounts to them publishing it and asked the judge to consider that in the light of the Eyeworks ruling, not only is FTD illegal but also a direct infringer of copyright.

Even if the Court does not eventually consider FTD to be a direct infringer, BREIN says that FTD still acts in a similar manner to other sites who have previously lost lawsuits in The Netherlands including Zoekmp3, ShareConnector, Mininova and The Pirate Bay. The anti-piracy group argued that all of these sites illegally used the availability of copyright content as a business model.

“In previous cases courts ruled that comparable business models were acting unlawful without saying the activity amounted to direct infringement,” Kuik told us yesterday.

“The point is that such business models structurally make use of the availability of unauthorized content. Even if it is not deemed infringement itself, it still is unlawful,” he added.

In an apparent reference to the earlier “filtering” rulings handed down against both Mininova and The Pirate Bay, BREIN argued in court that FTD should also have to check (filter/moderate) the potential copyright status of material before allowing the publication of their Usenet locations.

BREIN said that moderation of ‘spots’ does take place on the FTD service, but only on quality grounds, never due to copyright concerns.

Countering, FTD insist that since it is legal to download copyrighted material in The Netherlands, they have no duty to remove such ‘spots’. BREIN, however, see things differently and believe that commercial use of illicit material constitutes an infringement of copyright.

Lawyer Gijsbert Brunt reiterated that FTD is not responsible for the material uploaded to, or downloaded from, Usenet.

The Court’s decision is due to be handed down on or soon after 7th November 2010.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

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.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

It began when 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).

One might think that there is nothing particularly surprising about this event, after all this kind of thing is happening more often lately. But FTD isn’t hosting or storing the movie, and it isn’t offering torrents or NZB files either.

What FTD is doing, however, is allowing its users to post the filenames and the locations of those files which already exist on Usenet. Eyeworks argued that by publishing this information, FTD was making the movie available to the public.

The case was just heard at a court in The Hague. The judges agreed with Eyeworks and issued an injunction which forbids FTD from publishing filename and file location information concerning the above-mentioned movie.

“This [decision has been made] despite consistent case law (e.g. from Mininova and The Pirate Bay) that says that posting hyperlinks, torrents etc is *not* an infringement of copyright,” FTD lawyer Arnoud Engelfriet told TorrentFreak.

“That kind of activity can be called ‘assisting to make available’ but under Dutch law (different in the USA and probably the UK) that is only a tort. A tort is very much different from a copyright infringement,” he added.

The case was heard without FTD being in the court to defend themselves.

“The procedure used is called an ‘ex parte injunction’, which indeed can be issued without involvement of the accused party,” Engelfriet explains. “This procedure was introduced through European Directive 2004/48/EG.”

The punishment for failing to comply with the injunction is a fine of 10,000 euros per day. Next Wednesday FTD will file an objection against the decision.

“FTD is challenging the provisional measure because it is clear that it should not have been issued under Dutch law,” Engelfriet concludes.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Talking about copyrighted content on Usenet is illegal they argue, and BREIN wants FTD to be shut down for allowing this. The newsgroup community, however, is not prepared to tolerate BREIN’s accusations and has decided to take action. Earlier this year FTD took BREIN to court, demanding that it should retract its numerous statements that FTD operates illegally.

In a letter to the court in this ongoing case, FTD’s lawyer Arnoud Engelfriet stated yesterday that BREIN is going too far with its statements. Downloading copyrighted files and music for personal use is perfectly legal in The Netherlands, so he sees no reason why merely talking about it should be illegal.

FTD users do not ‘make files available’ and are therefore not acting against the law. “Hyperlinks, torrents, NZB-files or other technical possibilities to download copyrighted works are not provided. BREIN says in effect that it should be forbidden to talk about downloading material,” Engelfriet added.

Undeterred, BREIN maintained their stance and declared FTD a criminal operation. In a counter-claim against FTD, the anti-piracy outfit has demanded $70,000 a day in penalties if the Usenet chatter continues.

Needless to say, if BREIN wins their case this will have serious implications for many other websites and communities, including TorrentFreak. Simply mentioning that a movie such as 2012 can be downloaded through BitTorrent would no longer be allowed according to Engelfriet.

FTD’s lawyer is confident about the positive outcome of the case, arguing that FTD is operating within the boundaries of Dutch copyright law.

“We fully expect to win our case. BREIN is big on statements but often short on facts and legal arguments to back them up,” Engelfriet told TorrentFreak earlier, adding that they “have the law and the facts” on their side.

The verdict in this case is expected to be announced sometime next year. Until then, here’s our Usenet tutorial.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

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.”

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.