Representing the movie and music industries, BREIN argued that NSE must delete all infringing content from its servers, and in 2011 the Court of Amsterdam sided with the anti-piracy group.
In its initial verdict, the Court concluded that NSE willingly facilitated online piracy through its services. As a result, the company was ordered to remove all copyrighted content and filter future posts for possible copyright infringements.
Shutdown and Appeal
According to the Usenet provider, this filtering requirement would be too costly to achieve. It shut down its service but appealed the case.
After several more years of litigation, the Amsterdam appeals court ruled that NSE wasn’t liable for pirating users after all, but NSE was required to offer a responsive and effective notice and takedown procedure, possibly with additional measures.
Unhappy with the outcome, BREIN decided to take the matter to the Dutch Supreme Court. While NSE was no longer a threat, the case could prove crucial for many other Usenet providers.
BREIN has been very critical of some commercial Usenet companies, describing them as a refuge for pirates of all ilks, with uploaders, site owners and resellers working in tandem to facilitate and profit from widespread copyright infringement.
NSE clearly disagreed and positioned itself as a content-neutral intermediary that simply hosts and transfers bytes. As such, it should fall into the same category as other services, including YouTube and file-hosting platforms.
Supreme Court Decides
Since the Dutch Supreme Court initially struggled with key questions on the liability side, it planned to seek input from the European Court of Justice (ECJ). However, after a related YouTube/Uploaded liability verdict was delivered by Europe’s highest court, that was no longer deemed necessary.
Instead, both NSE and BREIN were asked to share their stance on that verdict, which essentially held that online platforms are not liable for pirating users, provided they have a proper takedown procedure and are not aware of any specific infringements.
In its decision published today, the Dutch Supreme Court states the appeals court ruled correctly when it found that NSE shouldn’t be held liable. The fact that NSE had a decent takedown procedure and no apparent knowledge of infringement, weighed in its favor.
The court also confirmed that NSE didn’t curate any content, nor did it specifically promote copyright infringement.
The finer details are discussed in the full verdict which also orders BREIN to pay €65,000 in legal fees. Aside from the financial aspect, it is mostly a moral victory for the former Usenet provider, as it shut down its service many years ago.
Patrick Schreurs, the former technical director of NSE, describes the Supreme Court verdict as a bitterwseet victory.
“This confirms that in 2011, NSE had to cease its activities on the basis of an incorrect judgment of the Amsterdam District Court. Unfortunately, BREIN Foundation was unwilling at the time to wait for the appeal to conclude. With this final judgment, that appears to have been a gross judgment error,” Schreurs says.
NSE’s former Financial Director Wierd Bonthuis adds that the 14-year battle with BREIN left its mark. It had significant personal, financial, and business consequences.
BREIN director Tim Kuik, meanwhile, is unhappy with the outcome. He also highlights the length of the legal battle, albeit for a different reason, noting that Usenet has changed significantly since 2009.
“Of course, we are disappointed that, following the Court’s somewhat unclear fact-finding, the Supreme Court ruled that this usenet provider was not infringing at the time. It doesn’t matter much, however, because that would be different today,” Kuik tells us.
“As the Court also ruled, an effective notice and takedown policy are needed that can keep track of the number and frequency of new uploads, and additional measures are also available. Since the CJEU’s YouTube/Cyando ruling, it is clear that, if you don’t have those, then you are infringing.”
BREIN was the party that ultimately took this matter to the Supreme Court, of course, so this wasn’t exactly a trivial matter. The anti-piracy group hoped that the highest court would hold NSE liable but, as we learned today, that’s not the case.
Update: After publication Tim Kuik sent us a statement in response to NSE’s claim that BREIN was unwilling to wait until the appeal was dealt with.
“NSE decided to close down in spite of Brein’s offer to negotiate about the necessary measures and Brein’s voluntary suspension of executing the initial verdict to do so. Instead NSE’s owners apparently decided to go for the easy option of securing their income by transferring its activities to another provider,” Kuik says.
“We believe they did so because a loss of availability of unauthorized content on NSE’s servers would have lost them their customers who paid for access. We understand their continued court case with Brein was funded by other Usenet providers with the same business model. We believe they did so in order to keep better protection measures against piracy at bay for as long as possible.”