Dutch ISPs Fighting Demands That They Block Access To The Pirate Bay

from the freedom-of-choice dept

The Dutch "anti-piracy" group BREIN has been one of the most aggressive in bringing all kinds of lawsuits in attempting to use basically any means possible to block various torrent sites. It has sued ISPs telling them they need to block The Pirate Bay and it has sued The Pirate Bay, telling it that it needs to block all Dutch users from accessing the site. On the ISP front, it appears that a few Dutch ISPs are teaming up to challenge the demand that it needs to block foreign sites like The Pirate Bay:
"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."
While this makes sense, it seems like every time we hear about court cases involving BREIN, the group comes out on top. So if I had to guess, I'm assuming that BREIN will win again. Hopefully I'll be surprised and the Dutch courts will pick up some common sense somewhere along the way.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Jun 28th, 2010 @ 8:14pm

    Who cares, this brings a lot of publicity to the pirate bay and, in turn, to the pirate party.

     

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  2.  
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    Anonymous Coward, Jun 28th, 2010 @ 8:15pm

    Don't worry, if the ISPs win, BREIN will just demand that the company that supplies them with electricity shut them off.

     

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  3.  
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    Anonymous Coward, Jun 28th, 2010 @ 8:39pm

    >Who cares, this brings a lot of publicity to the pirate bay and, in turn, to the pirate party.

    just out of curiosity :) - is piracy really the main point of the piraten? and how does are they using this to publicise themselves?

     

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  4.  
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    Anonymous Coward, Jun 28th, 2010 @ 8:54pm

    Re:

    "just out of curiosity :) - is piracy really the main point of the piraten?"

    Consumer freedoms are the point and the pirate party needs more publicity to get more votes.

    "and how does are they using this to publicise themselves?"

    Well, you're reading about it for one thing. Constantly making it on blogs and in peoples minds is how they're going to get elected, people must be constantly exposed to their existence and persistence in doing something otherwise people will quickly forget about them and think they're not doing anything.

     

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  5.  
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    Anonymous Coward, Jun 28th, 2010 @ 9:13pm

    what if there was a website (hosted outside of the country) that showed plans to kill the government, or otherwise cause harm to the Dutch? would the isps not agree with the government perhaps to block access to that site?

    is there any situation under which the isps would agree to block anything ever?

     

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  6.  
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    Perchange, Jun 28th, 2010 @ 9:24pm

    Re:

    I'd hope that in such a case ISPs would work with law enforcement to investigate the threat and take action against the individuals involved if found to be real.

     

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  7.  
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    Anonymous Coward, Jun 28th, 2010 @ 9:53pm

    Re:

    Oh yeah, blocking access to that site would certainly solve...wait, what, exactly?

     

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  8.  
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    Moo^2, Jun 28th, 2010 @ 10:00pm

    it's infuriating, recently a government inquiry concluded that there should be a legal offering before they try and shut down sites like the pirate bay. BREIN ignores this and is trying to bypass normal public debate about the responsibilities of the ISPs by filing these lawsuits.

    of course if they succeed, will we finally get something that rivals TPB? Or at the very least: an easy acces, ease of use, legal download/streaming service? of course not, it took them bloody 4 years to get iTunes here and 6 years later it still doesn't offer video downloads. At least we have Spotify, but that introduction didn't go that smoothly either and there is already grumbling among "ye olde musicians" that they would make more money without it.

    There are no plans, there is no vision, there's just lawsuits and Tim Kuik who will never admit that he's wrong.

     

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  9.  
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    Mike Masnick (profile), Jun 28th, 2010 @ 11:29pm

    Re:

    what if there was a website (hosted outside of the country) that showed plans to kill the government, or otherwise cause harm to the Dutch? would the isps not agree with the government perhaps to block access to that site?

    That seems like a head in the sand approach, does it not? Wouldn't the authorities use that information to help stop those plans? Blocking access to it for those in the Netherlands doesn't stop the plan.

     

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  10.  
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    Anonymous Coward, Jun 29th, 2010 @ 12:33am

    "Hopefully I'll be surprised and the Dutch courts will pick up some common sense somewhere along the way."

    These sorts of things are almost never about common sense but about who opens your jacket and tucks the largest wad of bills inside. Metaphorically speaking.

     

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  11.  
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    Jay (profile), Jun 29th, 2010 @ 12:47am

    Re:

    What the heck is Spotify?

     

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  12.  
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    Anonymous Coward, Jun 29th, 2010 @ 1:48am

    Re: Re:

    visit: www.spotify.com

    the introduction didn't go as smoothly as everyone hoped, because no one wanted to partner with them and because of some last minute fuckery by BUMA (dutch ASCAP) who wanted a bigger cut of the money.

     

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  13.  
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    Mike Masnick (profile), Jun 29th, 2010 @ 1:53am

    Re: Re:

    What the heck is Spotify?


    Basically a very nicely done online streaming music service. It's like an online iTunes. Not available in the US, though not that difficult to get an account if you really want one.

    Many in the industry think Spotify represents the future, but there are plenty of skeptics (me included). It's a nice service, but I don't think the music industry will deal with them in a way that they can thrive.

     

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  14.  
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    Richard (profile), Jun 29th, 2010 @ 1:56am

    Re:


    is there any situation under which the isps would agree to block anything ever?


    Is there any situation in which the blocking would actually achieve anything?

     

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  15.  
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    Trav, Jun 29th, 2010 @ 2:00am

    Stupid

    Remember what happened to napster? if they block pirate bay, the community will fragment into more Piratebay like sites and it will be even harder to control. God people are so dumb. honestly should be hiring teenages to overlook this crap, the older generations have no clue at all, might as well be monkeys with iphones.

     

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  16.  
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    Moo^2, Jun 29th, 2010 @ 2:25am

    Re: Re: Re:

    to me Spotify represents at least something other than the "we can't deal with this, let's sue everything in sight" mentality that has plagued us in the past.

    it's not perfect and your concerns are very true, but at least there's new options other than, pirating or itunes.

     

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  17.  
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    Marcel de Jong (profile), Jun 29th, 2010 @ 2:59am

    Re:

    Oh yes, blocking a website will help a lot {/sarcasm}

    No, blocking will never help anything, it's better to attack the site in question, because they are spreading hatespeech.
    Of course if it was placed there by a commenter, it's not the site that should be attacked with litigation, but rather that commenter.

     

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  18.  
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    PaulT (profile), Jun 29th, 2010 @ 4:03am

    Re:

    "what if there was a website (hosted outside of the country) that showed plans to kill the government, or otherwise cause harm to the Dutch"

    Well, instead of acting like fools and blocking the site, I'd hope that they work together with the hosting provider to try and track down the operators of the site. Since the charge would be conspiracy to commit murder against heads of state, I'd expect that the relevant international agencies would work together to catch and prosecute the violators of criminal law (not civil law, as with "pirates").

    Or, you know, they could just block the site, and hope that people reading outside of the Netherlands don't push ahead with the plan anyway.

    "is there any situation under which the isps would agree to block anything ever?"

    No, they shouldn't. They should work with authorities to prosecute those who violate criminal law, not try to enforce an unworkable and reactionary form of censorship.

     

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  19.  
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    Richard (profile), Jun 29th, 2010 @ 4:30am

    Re: Stupid

    Remember what happened to napster? if they block pirate bay, the community will fragment into more Piratebay like sites and it will be even harder to control. God people are so dumb. honestly should be hiring teenages to overlook this crap, the older generations have no clue at all, might as well be monkeys with iphones.

    Oddly this is the generation that was young during the "Pirate Radio" battles in the UK - which were basically over the same issue as now - and which the establishment basically lost (well they had to put in a legal alternative - and hired the former pirates to run it ).

    They don't even remember what happened when they were young!

     

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  20.  
    identicon
    abc gum, Jun 29th, 2010 @ 5:06am

    Re:

    So, you are equating copyright infringement to murder.
    How messed up is that?
    Seriously, how do you get through each and every day when you can not understand the simple things in society?

     

    reply to this | link to this | view in thread ]

  21.  
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    chris (profile), Jun 29th, 2010 @ 6:37am

    Re:

    just out of curiosity :) - is piracy really the main point of the piraten? and how does are they using this to publicise themselves?

    the basic platform of most pirate parties is intellectual property reform, privacy, and government transparency.

     

    reply to this | link to this | view in thread ]

  22.  
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    average_joe (profile), Jun 29th, 2010 @ 7:52am

    I bet BREIN loses in court... I hope so anyway.

     

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  23.  
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    chris (profile), Jun 29th, 2010 @ 8:27am

    Re:

    is there any situation under which the isps would agree to block anything ever?

    no. that's the point: blocking access to something is inviting a game of whack-a-mole that ISP's cannot win, yet they would be penalized for losing.

    in your scenario, someone would demand that dutch ISP's block access to killthedutch.com. the dutch ISP's comply. then the site "moves" in some manner (name change, host change, ip address change, etc.) and access is restored. the dutch ISP's are now breaking the law. rinse and repeat. after 10 iterations, the site is still running (and dutch people are being threatened in some manner) yet the dutch ISP's have committed 10 offenses of "failing to block access".

    this is the point of safe harbor laws: ISP's deliver access, not content. if the content is somehow illegal, the offense is committed by the uploader and the downloader, not the ISP's that make the uploading and downloading possible.

    in the case of a threatening site, the offenders are the site operators and the sites visitors, not the network operators who make it possible to access the site.

     

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  24.  
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    chris (profile), Jun 29th, 2010 @ 8:34am

    Re: Stupid

    Remember what happened to napster? if they block pirate bay, the community will fragment into more Piratebay like sites and it will be even harder to control.

    remember what happened to the pirate bay? it keeps getting shut down, yet somehow it keeps coming back. fragmentation would happen IF tpb was shutdown, but honestly with each resurrection TPB gets stronger and more political. i am wondering if a permanent shutdown will ever really happen.

     

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  25.  
    icon
    Overtkill (profile), Jun 29th, 2010 @ 9:30am

    Re: Re: Stupid

    You kinda have to respect them for that. I seriously hope they do survive just to win the fight.

    No doubt Lazarus would be envious. :)

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Anonymous Coward, Jun 29th, 2010 @ 12:24pm

    Re:

    You live in a strange and little world.

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    too much trouble to sign in, Jun 29th, 2010 @ 12:24pm

    I haven't read the subpoena, but according to the TF article, they're basing it on 6:162 CC (aka "unrighteous act"). Basically, it covers all types of vandalism and neglect.

    To give you an idea:
    Article 6:162 of the Dutch Civil Code.
    1. He who commits an unrighteous act against another, which act can be held against him, must compensate the other for the damages caused by that act.
    2. As an unrighteous act must be understood the infringement of a right or an act or lack of action contrary to a legal obligation or to what according to unwritten law is the generally accepted norm, bar the presence of grounds for justification.
    3. An unrighteous act can be held against the perpetrator if he is himself the cause or if it is caused by something for which he is accountable by law or by common law.

    1. If no actual damage, then no unrighteous act. However, Dutch courts, so far, have always assumed there is damage to the IP-plaintiff from file-sharing. I have yet, much to my dismay, to see that point argued properly.
    2. Since the ISPs aren't infringing themselves, nor are they legally required to actively stop it, that just leaves "lack of action contrary to what according to unwritten law is the generally accepted norm". It's a really bad play to make in a courtroom, because it could go either way. Nevertheless, Dutch courts have, so far, been quick to assume that file sharing is not "the generally accepted norm" (again, with very little actual argumentation).
    3. Here's where BREIN's arguments will be the thinnest. ISPs do not cause file-sharing nor are they accountable for what causes it (not that I have a clue what that is besides the digital age itself).

    Regrettably though, I have to agree with Mike. I can see BREIN sailing through this with the usual "it hurts us so if you can stop it you have to" argument they've been so successful with in the past. To be honest, that's some of what 6:162 is actually for. The real problem is the assumption the courts make that file-sharing causes damage to the rights-holder. While formally, the burden of proof for this rests on the rights-holder, they get away with arguments like "damage exists if there is even a single lost sale" (which is then assumed to exist while sales gained from downloads are ignored). It's hard to fight that type of reasoning and the only real hope is that the High Council will throw that argument into the rubbish bin some day.

    So far, no challengers. One way to turn this around is to somehow make the cases about consumer rights instead of about lost profits. Sofar, BREIN has been very careful not to tread there, and with good reason.

     

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  28.  
    identicon
    Anonymous Coward, Jun 30th, 2010 @ 11:58am

    Re: Re:

    "No, blocking will never help anything, it's better to attack the site in question, because they are spreading hatespeech."

    I would think it be better to educate your population out of caring whether hatespeech exists or not. Teach them critical thinking, problem solving skills that will overrule any form of speech that is unintelligent and wasteful to the human condition.

     

    reply to this | link to this | view in thread ]


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