Founded in 2001, FTD is The Netherlands largest Usenet community with around 450,000 members. FTD and its associated software allows its members to report the location of material they find on Usenet, which could include the usual movies, music and TV shows. This caused it to be a target for notorious anti-piracy outfit BREIN.
Not wanting to be bullied for what it considers to be a completely legal operation, FTD took the unusual step of taking BREIN to court, after Tim Kuik, the head of the outfit, said that FTD and its operators were committing a crime. FTD’s owners and lawyers vigorously deny this claim, the details of which can be found in our earlier report.
So what led up to this legal showdown? TorrentFreak spoke with FTD’s specialist IT lawyer, Arnoud Engelfriet, of Ictrecht law firm.
“In January of this year, BREIN announced they were ‘going after Usenet’ and
specifically singled out FTD as their first target,” Arnoud told TorrentFreak.
Naturally this position was of concern to FTD, but instead of burying their heads in the sand they actually contacted BREIN with a view to discovering where their differences lay and sorting them out amicably.
“Shortly after that, FTD engaged in negotiations with BREIN to find out what their objections were and how we could overcome them,” Arnoud told us. The discussions led FTD to pro-actively modify how they operate to ensure that there could be no doubt as to their legality.
“We even voluntarily made some changes to the FTD platform to ensure there could be no doubt we were in the clear,” Arnoud explained. But their attempts to engage and negotiate with BREIN came to nothing.
“After we made the changes, we got complete radio silence from BREIN. No confirmation, no rejection, nothing,” Arnoud explained. “Only after several days we found out what BREIN thought – but only by reading the online news. That was a huge disappointment.”
Indeed, ignoring the outstretched hand and making their intentions against FTD public, BREIN chief Tim Kuik spoke with Dutch publication Volkskrant and the resulting article titled “You do not pay for it, it’s unlawful” labeled FTD’s operations criminal. “Although they [FTD] are not carrying illegal content on their servers, what FTD does is simply criminal,” said Kuik.
Usually at this point a site being bullied by BREIN would either dig in its heels and wait for the lawsuit and injunction against them, or capitulate in fear of being destroyed.
“We could have waited for preliminary injunction proceedings, which is BREIN’s weapon of choice,” Arnoud told us. But that would have taken too much time, and since preliminary injunctions leave little room for a thorough investigation of all relevant facts, the risk was that FTD could be forced to close down for all the wrong reasons.
So FTD did something quite unusual in these cases – it went on the offensive against BREIN instead.
“At that stage, we felt that doing nothing would leave the sword of Damocles over our heads,” Arnoud told TorrentFreak. “BREIN is very fond of making continuous ominous statements in the press, and that could create a FUD environment for FTD. Therefore we decided to go to court and ask for an official declaration that downloading is legal, that it’s also legal to inform people about materials to download and to offer a platform to let people inform each other,” he added.
FTD also wants a public statement from BREIN correcting its assertion that its operations are criminal, and a declaration from the court that FTD’s operations are fully legal.
“We fully expect to win our case. BREIN is big on statements but often short on facts and legal arguments to back them up,” Arnoud told TorrentFreak.
“We have the law and the facts on our side.”