Dutch Appeals Court Says eBay Subsidiary Not Liable For Infringement By Users

from the but-what-about-the-pirate-bay? dept

While the Dutch courts forced local ISPs to block The Pirate Bay, kicking off a hilariously pointless and never-ending game of whac-a-mole, it's still never been fully explained why TPB -- as an intermediary -- should be liable for the infringement done by its users. In fact, a new ruling in a Dutch appeals court seems to suggest that neutral intermediaries deserve full protection from liability for infringement by their users. The ruling seems to focus more on trademark, but also appears to reference copyright as well. It involves an eBay subsidiary, Markplaats, and Stokke, makers of a high chair, who felt there was infringement on Markplaats. The case seems similar, in many ways, to a number of trademark cases filed around the globe against eBay.

Here, the court said that a neutral intermediary is not responsible for infringement done by users, and cited last summer's European Court of Justice ruling in the eBay/L'Oreal case. We found that ruling to leave open way too many loopholes that would make intermediaries liable, but thankfully, the appeals court in the Netherlands recognized the key issues, and insisted that Marplaats retains its status as a neutral platform even though it provides many more functions beyond just hosting. The court found that since the functions it performs don't favor either buyers or sellers, it still is considered a "neutral" intermediary.

The court also looked at whether or not certain remedies that Stokke was pushing for made sense, and noted that injunctions that required pro-active monitoring to prevent infringement did not make sense, in part because they seemed disproportionate and expensive. It similarly rejects a "notice and stay-down" provision (like a notice and take-down, but which also requires proactive blocking of any future attempts to post something infringing), noting that such a system would be costly and provide little real benefit.

Overall, this latest ruling seems to make sense, and properly focuses the liability question away from the intermediary tool provider. However, I do wonder how the court rulings against The Pirate Bay (and against neutral proxy services) make sense under a similar light.


Reader Comments (rss)

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  •  
    identicon
    Anonymous Coward, Jun 4th, 2012 @ 3:48pm

    The pirate eBay

     

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    identicon
    Anonymous Coward, Jun 4th, 2012 @ 4:28pm

    Overall, this latest ruling seems to make sense, and properly focuses the liability question away from the intermediary tool provider. However, I do wonder how the court rulings against The Pirate Bay (and against neutral proxy services) make sense under a similar light.

    Really, Pirate Mike? Can you really not understand it? Or are you just being willfully blind (as always)? Not all intermediaries are innocent.

     

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      Cerberus (profile), Jun 4th, 2012 @ 4:48pm

      Re:

      If you were a bit politer, you might be taken more seriously.

      One does wonder about the Pirate Bay in this regard. On the one hand, it is just as neutral a party, at least theoretically, in the exchange of files between its users. It does not exercise control over what files people link to on its site.

      On the other hand, the website as a whole seems to get substantial revenue from pirated files (even if they don't make any actual profit at all: they say that their costs are high enough to make their profits negligible or negative).

      So it might be interesting to see what the Hoge Raad has to say about this.

       

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      Anonymous Coward, Jun 4th, 2012 @ 5:25pm

      Re:

      The Pirate bay is nothing but links.

      Just because you have your poster boy/host for pointing vengeful fingers at, doesn't mean you are right in your righteous indignation.

      On day, you'll see opportunities presented by the Pirate bay and learn at least, what makes people pay for a product instead of getting it from PB. (See the thread on Ebooks)

      So scream and yell! Wail and beat your fists on your chest!
      You and others like you are the ones that made this situation by NOT listening to your customers.

       

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        Anonymous Coward, Jun 4th, 2012 @ 7:45pm

        Re: Re:

        LOL! What? I love how you pirate apologists blame the property owner for your conscious choice to violate his rights. Nothing psychotic about that. You sure know how to find 'em, Pirate Mike. Your little pirate following is hilarious.

         

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          The eejit (profile), Jun 4th, 2012 @ 11:30pm

          Re: Re: Re:

          But it's not us posters on TD who always treat their customers like criminals. Nor is it us who always infringe on imaginary rights.

           

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          AG Wright (profile), Jun 5th, 2012 @ 5:03am

          Re: Re: Re:

          What is hilarious is your demonizing your potential customers after setting up a system that continues copyright for such a long time that whole lifetimes of music and books are locked up by Disney and other rights holders.
          Truthfully, nobody cares about Steamboat Willie and it's copyright. We don't care if Disney is worried about their trademark on the mouse. We'd like to have permission to use our musical and literary heritage without paying people for that use who are not only not heirs of the original artists but haven't even ever met the artists.
          Just because some of us are pirates doesn't mean that we don't have a legitimate gripe with the system and your demonizing the word "pirate" is like some people demonizing the word "liberal". Because you don't like it you demonize it all the while thinking that makes it bad.
          We are trying to start a movement to reform a system that is totally screwed up and unsustainable due to the simple fact that now there is a system that is world wide and you can't regulate it.
          That must really gripe the heck out of you and those that pay you for your minionhood.

           

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      Anonymous Coward, Jun 4th, 2012 @ 6:56pm

      Re:

      You're just pissed that the DMCA doesn't force people to pay through the nose.

       

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      Ninja (profile), Jun 6th, 2012 @ 5:04am

      Re:

      You know, the last 4 torrents I downloaded from TPB (or rather magnets) were not infringing. 2 SXSW torrents made available by the event themselves and 2 music albums made available by the groups themselves (one was Pretty Lights, the other I can't recall right now).

      So, considering that their approach is to NOT remove torrents unless they are violating some criminal law (ie: child porn) they are pretty much neutral.

      You are the one willfully blind, buddy.

       

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    Digitari, Jun 4th, 2012 @ 4:46pm

    Re:

    Of course this is different, it doesn't have "pirate" in it's name therefore, it's protected.......










    /s maybe?

     

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    trollificus (profile), Jun 4th, 2012 @ 5:08pm

    It may very well be as simple as the legal status of "neutral tool-providers" vs. that of "neutral tool providers with enough money to retain rabid attack-dog lawyers".

     

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    Anonymous Coward, Jun 4th, 2012 @ 8:42pm

    I would say it is likely that at least part of this ruling gets challenged, because it goes against common sense.

    "notice and stay-down" should generally be a standard, not something that is mysteriously unobtainable. It's to everyone's benefit (consumer, site operator, and rights holder) to have this sort of thing. It keeps illegal products out of the marketplace, keeps the rights holder from having to complain every few minutes, and allows the site operator to go forward with business - without having to handle legal notices on a regular basis.

    Without "notice and stay-down", the judge is promoting the very sort of Whack a Mole system that you ridicule in other situations.

     

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      Anonymous Coward, Jun 5th, 2012 @ 5:53pm

      Re:

      Great! We'll get right on that. Where would you like us to send the bill for implementing and maintaining this system for you?

       

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    Anonymous Coward, Jun 5th, 2012 @ 12:30am

    simple. the entertainment industries aren't pulling the strings that work the law enforcement, courts or government in this (type of) case

     

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    Devin M. (profile), Jun 5th, 2012 @ 6:23am

    As much as I hate to say it...

    Longtime reader, first-time commenter. I just don't see this affecting any decisions regarding TPB. I don't see the courts finding TPB to be a neutral service provider. Their services and business practices (sidenote: Go TPB!) would probably take them out of this category.

     

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