In their on-going quest to rid the Internet of evil pirates, in January anti-piracy group BREIN made a particularly impressive announcement.
Hitting at the top of the so-called piracy pyramid, BREIN had taken down the Swan warez Scene topsite. Formerly known as ATS, Swan operated from several servers and reportedly carried more than 200 terabytes of data.
Although the site naturally had connections to a variety of Scene groups, the action taken by BREIN wasn’t aided by the police or a court so none of the individuals involved are facing legal action.
However, this lack of an official legal process rang a couple of loud alarm bells given developments in the case. BREIN boss Tim Kuik admitted that his organization had somehow acquired the Swan servers from hosting provider WorldStream, who in turn weren’t in a position to simply give other people’s equipment to a third party.
Nevertheless, both BREIN and WorldStream defended their positions, positions which have now come back to bite them.
It later transpired that the servers were owned by Alejandra Transporte SA, a small South American hosting provider that had nothing to do with the topsite and as an ISP had no knowledge of what its equipment was being used for.
Acting on behalf of Alejandra Transporte, lawyers Solv Advocaten in The Netherlands have been taking legal action to force BREIN to hand back their client’s equipment, and yesterday those measures bore fruit. Following authorization from the Court of Haarlem, bayliffs seized the servers back from BREIN.
“BREIN took the property of my client (8 high end servers) without any court order or warrant. Also, BREIN states to have gained access to the servers. On these servers [business and private material] is stored,” Milica Antic of Solv Advocaten told TorrentFreak.
“Since my client is a hosting provider, also content of third parties (the customers of my client) is on these servers. This is a breach of privacy, to say the least.”
WorldStream, the server host and a private company, handed BREIN the servers voluntarily. As noted by Milica Antic to us in conversation this morning, BREIN is also a private organization and has no special legal or investigative authority. Nevertheless, the pair reached an agreement and BREIN took the servers away whilst refusing to reveal their location.
At the time of the seizure, BREIN boss Tim Kuik told TorrentFreak that his organization “exerts the rights and civil enforcement remedies of copyright holders” which “includes seizure of servers used for infringements.”
Solv Advocaten see things very differently and are stating that by seizing the property of another without having permission from a judge, BREIN is guilty of vigilantism.
Earlier, Tim Kuik said that if the owner of the servers wanted them back they could step forward but pointed out that this may have its drawbacks – BREIN could seek to hold them liable for the activities that took place on the servers.
However, Solv Advocaten insist that as a hosting provider Alejandra Transporte does not know what content it hosts for its clients and is therefore not liable. Indeed, in this case BREIN themselves could become the hunted.
“If we commence further proceedings against BREIN it will be on basis of breach of property rights and breach of privacy,” Milica Antic concluded.
Update: “Two members of Dutch Parliament have asked the Minister of Justice questions about this matter,” Milica Antic has just informed TorrentFreak. “They are particularly concerned about the fact that BREIN has gained access to the servers on which the business and private administration of my client is stored.”