Over the years many sites, services and platforms providing or facilitating access to infringing content have taken sanctuary in perceived loopholes but most found that few – if any – exist.
In Europe, Dutch anti-piracy group BREIN has been the engine behind several important cases featuring defendants who believed they had found a legal foothold in an otherwise illegal market. In one of these lawsuits, BREIN took on Leaper Beheer BV, a Netherlands-based company and related business entities, that sold pirate IPTV subscriptions in .M3U playlist form.
These types of playlists carry no infringing content but they can direct users to where infringing content can be found. In this case, around 4,000 live TV channels and 1,000 movies via an unlicensed IPTV service.
In its defense, Leaper argued that it supplied no infringing content itself and that the playlists did not make anything available that wasn’t already available on the internet. BREIN insisted that the distribution of the playlist amounted to a ‘communication to the public’ under EU copyright law.
In 2018 the court sided with BREIN, noting that when Leaper Beheer BV, Growler BV, DITisTV and their respective directors distributed the playlist, they made the linked content available to a ‘new audience’ beyond that envisioned by the copyright holders.
Court Orders Infringement to Stop
After copyright infringement was determined, the court ordered the defendants to stop facilitating access to the unlicensed streams or face penalties of 5,000 euros per playlist/IPTV subscription sold, to a maximum of one million euros.
Having been found potentially liable, the three companies and their directors signed agreements with BREIN to cease and desist, in order to avoid a full lawsuit that would incur additional costs and a damages award. BREIN says the defendants were also required to pay a settlement fee. When no such payment was forthcoming, BREIN made good on its threat.
In partnership with media companies including Talpa and RTL, BREIN seized evidence and initiated legal proceedings. Predictably, the plaintiffs came out on top.
Court Rules in Favor of BREIN – Again
BREIN now reveals that on March 16, 2022, the Court of Maastricht ruled that four companies (Leaper, Growler, DITisTV and Ultimo) and their two directors are liable for the damage caused by their sale of IPTV subscriptions, links to illegal IPTV, and associated set-top boxes.
BREIN says that it tried to get the traders to stop selling the 10 euros per month subscriptions as far back as 2014 and had to take the matter to court in 2018 to show infringement was taking place. When the offer to pay a settlement in lieu of a full lawsuit was refused, a case was presented on the merits.
Evidence was presented to show that the two directors and their companies willfully set out to infringe copyright, something that is considered an aggravating factor when calculating a damages award. The following email between the directors certainly didn’t help in that respect.
Perhaps the market will be really destroyed by the entire competition and BREIN within a year. With 100 shops we can fuck the market all the way to its mother! If we have a lot of money in a year’s time, we can then step into a new business.
Court Finds Directors Personally Liable
A corporate structure can sometimes offer a level of protection for directors when things don’t go to plan but that isn’t the case here. The Dutch court found the companies (and their directors personally), jointly and severally liable for the damage caused to the copyright holders.
The exact amount is yet to be determined but the financial costs are already mounting. The Court ordered the defendants to pay the costs of the proceedings, estimated at €20,764 ($22,986), plus legal costs of €2,252 ($2,493).
At this point the defendants are worse off financially than they were when a settlement was first offered. However, BREIN suggests that it is still open to the matter being settled out of court. If not, then a separate proceeding to determine damages will go ahead. That’s unlikely to be a small amount.
In the meantime, BREIN seems pleased with the results so far.
“These guys tried to sing it out as long as possible to rake in as much money as possible. That’s going to cost them now,” says BREIN director Tim Kuik. “Because they are also personally liable, they can no longer hide behind their companies.”
The decision can be found here