BREIN and Usenet Portal Face Off In Court Over Legality

The long-running battle between anti-piracy group BREIN and a Usenet community reached a Dutch court room this week. For their part, the FTD newsgroup portal wants the courts to issue a declaration that they operate legally. On the other hand, BREIN insists that publishing the locations of copyright material is illegal and tantamount to directly publishing it. On that basis BREIN is demanding a permanent injunction against FTD's operations.

In the Court of Haarlem on Monday, Dutch anti-piracy group BREIN met with the operators of Usenet community FTD for the hearing of their long-standing copyright dispute.

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.

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