Back in January 2009, Dutch publication Volkskrant published an article about Usenet titled “You do not pay for it, it’s unlawful”. In it, Tim Kuik, head of anti-piracy outfit BREIN made some aggressive comments about Netherlands-based discussion site, FTD. “Although they [FTD] are not carrying illegal content on their servers, what FTD does is simply criminal,” he said.
Founded in 2001, FTD is the largest Usenet community in The Netherlands with a massive 450,000 members. The site and its software allows FTD’s users to report the location of material they find on Usenet, which could include the usual movies, music and TV shows. Of course, once other members know where to find the material, the downloading can begin. Since much of the material downloaded is copyrighted, BREIN went on to claim the site is illegal, but the picture in The Netherlands is not necessarily how BREIN paints it.
Downloading movies, TV shows and music from the Internet for your own personal use is completely legal in Holland. Making copies of original material you own for your own use is also completely legal. Even making copies of pirated material you don’t own is legal, provided it is exclusively for your own use. Although certain torrent sites can exist in a murky semi-gray area, FTD doesn’t even link to copyright works hosted by someone else – there is no so-called “structural infringement” which BREIN claims some BitTorrent sites demonstrate.
Considering the above, FTD are pretty annoyed that Tim Kuik of BREIN called them criminals, since his claims have no basis in law. Unlike many sites threatened by copyright groups, FTD aren’t sitting back and taking this, they are fighting back.
“FTD is a perfectly legal activity,” said FTD director Ronald Sievers, a point on which his legal team agrees.
“BREIN’s claims are built on legal quicksand,” says FTD lawyer Arnoud Engelfriet. “They speak of ‘facilitation’ and the structural use of the availability of unauthorized downloads, as if it were a foregone conclusion that this is prohibited. Nothing could be further from the truth. Furthermore, FTD only facilitates communication between people who quite legally download from Usenet. FTD does not facilitate or carry out any upload and therefore can not be held liable.”
So, supported by two Dutch copyright lawyers and IT experts, FTD have filed a lawsuit against BREIN in which they request the court clarifies these points;
1. That downloading is legal in the Netherlands, even if the uploader committed copyright infringement when he uploaded the material.
2. That directing users to content on Usenet via FTD is legal, even if the material was put there without permission of the copyright holders.
3. That FTD is acting within the law, considering the above.
4. That there is no need for FTD to filter any of the reports its users create which refer to the location of content on the Internet
5. That FTD does not have to remove any of these reports, unless BREIN makes a correct and formal complaint.
Of course, FTD also want a retraction of BREIN’s statement that FTD is illegal. “FTD require a public statement correcting this and wants a declaration from the court that they were simply acting legally,” it said in a statement.
Additionally, Kuik also quipped that “what FTD do clearly constitutes a crime,” to which Arnoud Engelfriet, one of FTD’s lawyers responded, “A correction of this should be published on BREIN’s homepage too.”
A copy of the subpoena can be found here. (pdf)