In 2009, Dutch anti-piracy group BREIN, representing the movie and music industries, took News-Service Europe (NSE) – one of Europe’s largest Usenet providers – to court.
BREIN stated that NSE should delete all infringing content from its servers, and in 2011 the Court of Amsterdam sided with the copyright holders.
In its initial verdict the Court concluded that NSE willingly facilitated copyright infringement through its services. As a result the company was ordered to remove all copyrighted content and filter future posts for possible copyright infringements.
Responding to the verdict the Usenet provider said that it was economically unfeasible to filter all messages. The company therefore saw no other option than to shut down its services while the appeal was pending.
In 2014 the appeals court issued an interlocutory judgment ruling that NSE does not facilitate copyright infringement as long as it maintains a procedure through which copyright holders can send unlimited takedown notices.
Whether the Usenet provider could also be ordered to employ a keyword filter was something to be decided at a later date. This week the Court issued its second judgment, but while both parties had hoped for more clarity, the Court pushed a final decision back once more.
Instead, the Court is now questioning whether both parties are still willing to take the case forward, as NSE already ceased its services several years ago. If they continue, both parties will have to split the legal costs as the case will have no clear winner.
In addition, the Court is asking both parties to provide expert witnesses who can answer several outstanding questions regarding a keyword filtering mechanism.
Among other things the Court would like to know if a keyword filter is technically feasible (NSE says it is not) and what costs and resources would have to be invested to employ such measures.
The Usenet provider is disappointed with another delay, but former CFO Wierd Bonthuis is happy that the court didn’t rule against the company.
“I am pleased that the Court of Appeal has finalised its conclusion that News-Service Europe did not act unlawfully,” Bonthuis says.
“However, it is painful that we must now conclude that this means it has been established that in 2011 BREIN wrongfully forced News-Service Europe to cease its activities.”
For its part, BREIN stresses that the Court made it clear that Usenet services must maintain a proper takedown procedure, and possible more.
“Even if a Usenet provider is seen as a neutral intermediary, they still need to have an effective takedown procedure and take appropriate additional measures to curb the massive infringements,” says BREIN director Tim Kuik.
According to BREIN, services that “thrive on illegality” prefer not to take any effective measures against copyright infringement as that would hurt their business.
Neither party has commented on the future of the case, but considering the lengthy legal history it’s likely that they would both want to take it all the way.
While the Usenet provider doesn’t plan to relaunch its services in the future, a final decision on keyword filtering could have broad implications for similar services in the Netherlands and abroad.
