Ziggo were later joined in the case by rival ISP XS4ALL, fighting the action together in the hope of avoiding a damaging precedent. Initially the court decided that blocking all subscribers went too far but BREIN wasn’t satisfied and took the case to a full trial.

In late 2011 the case was heard, with the ISPs arguing in favor of their customers’ right to have free access to information and BREIN countering that copyrights need protecting too.
In January 2012 the ISPs lost the case and BREIN celebrated victory.

Both Ziggo and XS4ALL subsequently filed appeals but in May 2012 yet more local ISPs – KPN/Telfort, UPC,T-Mobile and Tele2 – were ordered to block The Pirate Bay on the back of the original ruling.

Ziggo and XS4ALL appeal

Today the Ziggo / XS4ALL appeal is being heard in the Court of The Hague. Andreas Udo de Haes, editor of Dutch news site Webwereld, has been live tweeting from the courtroom and there are some interesting arguments to report.

The legal team for XS4ALL began with a reference to the failed SOPA/PIPA legislation in the United States which would have allowed DNS and IP blocking of ‘pirate sites’. Over in Europe, the EU Enforcement Directive is clear on ISP liability for third-party infringements and proactive blocking of communications is prohibited according to recent case-law (1)(2), the ISP’s lawyer argued.

XS4ALL went on to insist that blocking the full Pirate Bay site is a disproportionate response – even if 90% of the indexed content is illegal, many hundreds of thousands of legitimate files are now affected by the blockade.

In any event, the ISP believes that website blocking is ineffective in stamping out copyright infringement. Research carried out by ISPs and researchers has found that blocking The Pirate Bay is futile. If the tool is useless, then there can’t possibly be a need for it, the ISP told the court.

A combination of improved legal options and educational measures are a better bet, XS4ALL concluded.

Ziggo: File-sharing is an advertising channel

Next up was the lawyer for Ziggo, who began by pointing out that not only is the blockade of The Pirate Bay easily circumvented using proxy sites, but there are also plenty of alternative sites offering similar content.

Ziggo said that file-sharing had not caused the end of the music industry and that offering decent legal alternatives leads to a decline in piracy. The existence of iTunes shows that it is entirely possible to compete with ‘free’, the ISP said.

Ziggo’s lawyer said that while BREIN insists that the growth of file-sharing has damaging effects on culture, creativity and the entertainment industry, research shows that the sector is actually growing. The ISP said if there is indeed a relationship between piracy and legal services, it is a positive one, with piracy operating as an advertising channel.

Ziggo went on to underline that it has absolutely no connection to The Pirate Bay and operates only as an intermediary, yet it is expected to implement a very broad filter which indiscriminately blocks users regardless of the kind of content they’re trying to access.

The ISP added that the EU court previously held that preventive measures are only allowed if the fundamental rights at stake in the case are carefully weighed. The current blockade is the start of a very dangerous path, Ziggo concluded.

BREIN: Pirate Bay is run by teenagers profiting from ads of naked girls

After a short break, BREIN presented their case. The anti-piracy group said that despite the ISPs proclaiming the end of the Internet if they are forced to block sites like TPB, no such thing has come about. ISPs are able to block spam because their customers prefer it, but blocking a site such as The Pirate Bay is suddenly difficult only because their customers find it useful.

ISPs are in the business of selling bandwidth, BREIN’s lawyer said, but this is at the expense of poor artists and bankrupt record stores.

BREIN said that the nature of BitTorrent is clear – its users upload as well as download so are therefore infringing copyright. The Pirate Bay also infringes and represents the greatest instance of piracy “in the history of mankind” and must be stopped. Just this week it had Grand Theft Auto V in advance of its official launch.

BREIN’s lawyer said that 95% of the content indexed by The Pirate Bay is illegal and the legal content has “zero seeders and zero peers.” The site removes fakes, does not respond to takedown notices, and is run by “a pair of Swedish teenagers who turn 30 million euros in revenue with ads of naked girls.”

Countering claims that the blockade is ineffective, BREIN said that its research shows that when confronted with a block, users tend to go to other sites, an indication that the blockade is indeed working. Those other sites, BREIN said, will be targeted in due course.

Blocking is a proportional response and costs very little to implement, BREIN went on to argue, adding that according to Alexa, Google and Comscore, The Pirate Bay’s traffic dropped when the blockades were introduced and fell again when its proxy sites were hit. Surprisingly, BREIN told the court it had shut down around 200 proxies.

BREIN went on to argue that the blockades had been effective in reducing piracy and stated that previous studies reporting no decrease in torrent traffic after the blockades were introduced could not be relied upon. There had been an increase in legal BitTorrent usage, BREIN said, such as server syncing carried out by Facebook, traffic which the studies did not look at.

The anti-piracy group also contested the notion that DNS blockades are a form of abuse. BREIN said the technique was more akin to a configuration change rather than an attack on the Internet. As for the EU ruling in the SABAM case, BREIN said it had concentrated on the L’Oreal v eBay judgment. It was not asking for hugely expensive packet level filtering but a straightforward block of The Pirate Bay, in same way that the ISPs block thousands of spam sites every day.

Interestingly the judge then questioned BREIN on the effectiveness of the blockades. BREIN said its goal is to have The Pirate Bay blocked, however the judge recalled that BREIN had already admitted that people circumvent that ban by going to other sites. BREIN said they would tackle those sites next but Ziggo countered by stating that many of those sites are outside the Netherlands.

And now comes the wait, possibly as long as six weeks, for what could turn out to be an extremely important ruling.

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

To help avoid a damaging legal precedent, Ziggo was joined in the case by rival ISP XS4ALL. Initially the partnership was successful. The Court of The Hague decided that blocking all customer access to The Pirate Bay was a step too far. BREIN, refusing to give in, launched a full trial.

During November last year that case was heard before the Court of The Hague. BREIN argued that it would be trivial for the ISPs to initiate a block of The Pirate Bay, while the ISPs stated that doing so could compromise the security of their networks, threaten freedom of expression, and would ultimately prove ineffective.

BREIN countered by insisting they have rights too – copyrights – and that the reason the ISPs don’t want to block TPB is because they profit by selling bandwidth to users so they can access it.

Today, the Court of the Hague delivered its verdict – and it’s victory for BREIN.

The Court noted that approximately 30% of Ziggo subscribers and 4.5% of XS4ALL subscribers use The Pirate Bay to share unauthorized media. Downloading copyright material is currently legal in the Netherlands but uploading is not, so due to the two-way nature of BitTorrent it is deemed that those customers are infringing copyright.

While the Court noted that an ISP blockade against The Pirate Bay would also prevent subscribers with legitimate business from accessing the site, it said that the legal offerings available there are not only limited, but also available from other sites. Preventing a large number of copyright infringements trumps the availability of a more limited supply of legal content, the Court noted.

Furthermore, the Court concluded that in granting an injunction to block The Pirate Bay it would only be preventing access to a site already subject to a court order which forced its operators to block access to Internet users in the Netherlands. That order was previously issued by the Amsterdam Court but was ignored by the site’s operators.

Spokesperson for XS4ALL, Niels Huijbregts, said the company is “bitterly disappointed” by the decision, noting that fundamental rights had been traded for “commercial interests”.

The ISPs have ten days in which to initiate the blockade – failure to do so will result in fines of 10,000 euros per day.

Update: BREIN says it will ask other Dutch ISPs to block The Pirate Bay as well.

Update: XS4ALL says it will appeal the verdict.

Update: Ziggo will also appeal.

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

Because the operators of the site fail to take the site offline in The Netherlands, BREIN has extended its focus to Internet providers. This tactic has been pioneered successfully in both Italy and Denmark, but today The Hague’s Court decided that The Pirate Bay wont be blocked in The Netherlands.

BREIN wanted the largest ISP in The Netherlands, Ziggo, to implement a DNS and IP address block of The Pirate Bay, with any future domain names and IP addresses of the site to be blocked within 24 hours of notification by BREIN. The Court, however, argued that blocking all customer access to The Pirate Bay goes too far.

The Court ruled that there is no evidence that the majority of the customers are using The Pirate Bay to infringe copyright. If BREIN wants to stop the actions of individual customers it has to go after them separately. Blocking the entire Pirate Bay site is unjustified in this case, the Court concluded.

BREIN initially started a case against the ISP Ziggo, but rival XS4ALL joined to avoid a legal precedent which could have negative implications for the basic principles of the Internet. The company argued that if the case was lost, the ruling could have far-reaching consequences for both ISPs and Internet users.

With the present verdict the tide seems to be turning in Europe. In recent years both Italian and Danish providers were ordered to censor The Pirate Bay. However, in the last two weeks courts have ruled in favor of the ISPs in Belgium and The Netherlands.

Two weeks ago, BREIN’s counterpart in Belgium lost its case where it requested local ISPs to restrict user access to The Pirate Bay. A judge at the Antwerp Commercial Court rejected the blocking demands and labeled them “disproportionate”, similar to today’s verdict in The Netherlands.

Despite having lost this preliminary case, BREIN is expected to go ahead with a full trial against Ziggo. The anti-piracy outfit sees an ISP block as the only option left to stop The Pirate Bay. The verdicts they won against the site’s operators aren’t worth much since ‘the world’s most resilient torrent site’ is still very much alive in The Netherlands.

“It is unacceptable that The Pirate Bay and its administrators would walk free by hiding in Thailand and Cambodia and ignoring judgments,” BREIN chief Tim Kuik commented. “We’re not going to let this go. We have started a full trial against Ziggo and XS4ALL, but we will also appeal against today’s controversial ruling by the judge.”

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

Ziggo is the largest cable Internet provider in The Netherlands and in 2009 generated nearly 1.3 billion euros in revenue from 7.2 million Internet, TV and telephone customers. In April BREIN demanded that it stop providing customer access to The Pirate Bay via a DNS and IP address block.

Non-compliance would result in legal action under Article 6:162 of the Dutch Civil Code. Ziggo, however, refused to comply.

“There is no legal basis for this request,” said the company in an announcement. “We are just a conduit. We provide people access to the Internet and have nothing to do with that website. Moreover, we favor public Internet.”

Now it appears that Ziggo is receiving support in its fight from one of its competitors. ISP XS4ALL will join its rival in fighting the proceedings brought by BREIN.

XS4ALL says that it is against censorship and is intervening in the hope that they can help avoid a legal precedent which could have negative implications for the basic principles of the Internet. The company argues that if the case was lost, the ruling could have far-reaching consequences for both ISPs and Internet users.

While ISPs can be held responsible for material held on their own servers, generally they cannot be held responsible for the content of traffic generated by others.

“The basic principle of the Internet is that ISPs pass on traffic to their customers unfiltered, they are merely a gateway,” says Niels Huijbregts, spokesman for XS4ALL. “The Pirate Bay website is not hosted on a Ziggo server, so Ziggo can’t be held responsible for restricting access to the website. BREIN is targeting the wrong people.”

Tim Kuik, the boss of BREIN, sees things quite differently.

“This is not about censorship but about the basic principles of law which we live by,” he explained. “Democracy only works if we follow the rules, something the illegal Pirate Bay fundamentally does not. The law also states that there is no right of access to illegal websites. That is something that Ziggo and XS4ALL have overlooked.”

Christiaan Alberdingk, XS4ALL’s lawyer and partner at SOLV law firm is clear on what the ISPs are trying to avoid when the case goes to court in The Hague on June 28.

“When we start shutting down sites foreign sites in The Netherlands, that is a disproportionate restriction on our freedom to gather information. That does not fit into a democratic country like ours.”

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

BREIN’s lawyer argued that since The Pirate Bay is responsible for millions of copyright infringements every day, the site should be blocked to visitors from The Netherlands.

BREIN won that case and Fredrik, Gottfrid and Peter were ordered to block Dutch users before March 1st 2010 or face penalties of 5,000 euros per person, per day.

The defendants, who claimed they were not responsible for the site’s operations, announced they would not appeal the decision. However, since they said they were no longer involved with the site, they therefore don’t have the ability to block Dutch users either. Indeed, The Pirate Bay remains accessible to the Dutch to this day.

But of course, there is another technique which the movie industry can use to have sites blocked which doesn’t involve suing sites like The Pirate Bay. As pioneered in several other countries by the music industry, BREIN appears to be going after Dutch ISPs.

According to information received by TorrentFreak, BREIN has begun threatening Dutch ISP Ziggo in an attempt to force them to block The Pirate Bay. Ziggo is the largest cable Internet provider in The Netherlands and in 2009 pulled in nearly 1.3 billion euros in revenue from its 7.2 million Internet, TV and telephone customers.

Our source, who has provided us with credible information in the past, says that BREIN is demanding that Ziggo implements a block on the following grounds:

1. The Pirate Bay is guilty of large scale copyright infringement
2. The Pirate Bay founders have been convicted
3. The Pirate Bay refuses to work with rights holders to solve piracy issues
4. Ziggo can easily block the site with simple technical measures.

BREIN is apparently threatening Ziggo with Article 6:162 of the Dutch Civil Code which reads:

“A person who commits an unlawful act against another which is attributable to him, must repair the damage suffered by the other in consequence thereof.”

To this end, BREIN wants Ziggo to implement a DNS and IP address block of The Pirate Bay, with any future domain names and IP addresses of the site to be blocked within 24 hours of notification by BREIN. This demand is similar to a court order that is currently in effect in Italy, one that is also easy to bypass for tech-savvy users.

TorrentFreak contacted BREIN boss Tim Kuik who politely told us that he had no comment.

At the time of publication a request to Ziggo’s press office for comment remains unanswered.

Update: Ziggo is refusing to co-operate with BREIN’s request.

“There is no legal basis for this request,” says a Ziggo announcement. “We are just a conduit. We provide people access to the Internet and have nothing to do with that website. Moreover, we favor public Internet.”

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