ISP Must Forward Warning Notice to eBook Pirate, Dutch Appeals Court Rules

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Dutch anti-piracy group BREIN is eager to send warnings to persistent pirates but doing so isn't straightforward in the Netherlands. The issue has been at the center of several lawsuits and a mass notice-forwarding scheme was shelved recently over privacy concerns. In a win for BREIN, a court of appeal today ruled that in specific cases, ISPs can be required to forward copyright warnings to online pirates.

warningSupported by Hollywood and other content industries, Dutch anti-piracy group BREIN has been battling online piracy for almost a quarter of a century.

The non-profit organization has shut down thousands of piracy sites since then, including former torrent giant Mininova and many other notable names.

In recent years, BREIN has focused more heavily on deterring users as well. In part, this has been achieved by tracking down persistent pirates and putting them on notice via warning letters.

This can be an effective strategy but contacting alleged pirates in the Netherlands is easier said than done. Just a few weeks ago a local court of appeal ruled that Internet provider Ziggo is not required to forward BREIN’s warning letters to subscribers whose accounts were used to share pirated content through BitTorrent.

Warning an eBook Pirate

In this case, BREIN chose not to appeal the ruling. Instead, it was looking forward to a court of appeal ruling in a related case, which was handed down today.

The matter involves a Ziggo subscriber who stands accused of offering a library of over 200 e-books to the public through an open directory. BREIN hoped that the ISP would forward a notice to the associated account holder or share their personal details, but Ziggo refused to do so voluntarily.

BREIN took the matter to court which last year ruled that the ISP is not required to cooperate with the request. Without a license from the Dutch Data Protection Authority, linking the IP address to the subscriber’s information would violate privacy law. Similarly, sharing the data with BREIN wouldn’t be allowed either.

Court of Appeal Rules on Piracy Warning

Disappointed with this outcome, BREIN immediately filed an appeal. That paid off today when the Arnhem-Leeuwarden Court of Appeal handed a win to the anti-piracy group.

“The court finds Brein’s interests in having public access to this library closed via the internet outweigh the infringement of the privacy of Ziggo customers and Ziggo’s interests,” the court’s press service writes.

BREIN also requested a ruling that would require Ziggo to comply with its demands in similar cases going forward. Since future cases will have to be judged individually to weigh the interests of both sides, the request was denied.

The Court of Appeal ruling means that Ziggo has five days to forward BREIN’s warning notice to the relevant subscriber via email. If this fails to shut down the pirated eBook directory, Ziggo must share the subscribers’ personal details with the anti-piracy group.

The Court of Appeal also ordered Ziggo to pay €14,385 towards the anti-piracy group’s legal fees.

Business as Usual

BREIN is pleased that Ziggo must forward its warning but a more straightforward way of reaching pirates in future instances was the overall goal. Speaking with TorrentFreak, BREIN Director Tim Kuik says that it will be “business as usual” for new cases.

“That means we need to motivate a request for name and address details on the basis of the Supreme Court’s Lycos/Pessers criteria. An intermediary then needs to assess and make a decision. If it refuses to cooperate BREIN can go to court..,” Kuik says.

The Mircom Angle

Dutch courts are required to weigh privacy rights against the interests of rightsholders to determine whether ISPs are required to comply with disclosure requests.

This cautious approach is good for Internet users but BREIN sees it as a major hassle. It also contradicts how these issues are handled elsewhere. In the United States and other countries, for example, ISPs are required by law to forward copyright infringement notices to subscribers.

Interestingly, BREIN highlights a note in this week’s decision that references an earlier judgment by the European Court of Justice. In this ‘Mircom’ case, Europe’s highest court concluded that ISPs can be required to share the personal details of alleged BitTorrent pirates.

Linking the IP addresses of alleged non-criminal pirates to subscriber details doesn’t by definition violate EU privacy law, the EU court held.

However, in the same case, the court also noted that national courts must test each case to appropriately weigh the rights of both parties, to ensure that everything is in accordance with local law.

All in all, today’s Court of Appeal ruling is a small victory for BREIN. That said, the battle between privacy rights and rightsholder interests in piracy cases certainly isn’t over in the Netherlands.


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