BREIN Scores Another Victory, Making It Suck Even More To Be A Dutch Internet Company

from the holy-secondary-liability dept

Torrentfreak reports on a really scary ruling coming out of the Netherlands, in which a court found hosting company XS Networks liable and ordered it to pay up because it hosted a torrent site. We've discussed issues of secondary liability, but this goes well beyond what we've seen elsewhere. As TorrentFreak explains, super-aggressive Dutch anti-piracy organization BREIN was trying to shut down the site SumoTorrent and get information about its operators. XS Networks, who briefly hosted the site, pointed out that it required a court order to turn over any info. This is a perfectly reasonable stance. However, it later backed down and reached an "agreement" with BREIN to hand over some info. By that time SumoTorrent had moved on to another host, and the info that XS Networks had to give to BREIN was incorrect or useless. BREIN then claimed that XS Networks was responsible for this situation and sued for damages.

This is the point that any reasonable court would laugh at BREIN and tell its boss Tim Kuik to learn a little something about suing the proper party, rather than a tool provider (especially one who simply asked for a court order before coughing up private info and who later was clearly willing to negotiate in good faith). Instead, the court went in the other direction, and said that SumoTorrent "is clearly facilitating copyright infringement" and that XS Networks should have magically known that to be the case, and shut the site down when BREIN first asked. Even if you're a copyright system supporter, this ruling should scare you. It takes away any sort of due process. Most reasonable people admit that whether or not a site is illegal should require at least a basic adversarial trial in which the site is able to make its case. But here the court ignores all of that, and the fact that it hadn't yet proved SumoTorrent guilty of infringement, and just insists that XS Networks should have magically accepted that BREIN must be right. Talk about a recipe for abuse by BREIN and other copyright holders.

If you're a hosting company in the Netherlands, your legal liability just shot way, way up. Apparently, if you don't magically kick off every site that might be enabling someone to break the law, you yourself may be liable for any illegal actions done on the site (even without such illegality ever being proved). That seems like a great recipe to get a bunch of Dutch hosting companies to reconsider even being in business.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Beech, Oct 25th, 2012 @ 3:46pm

    Not good enough

    Not good enough! Now they should sue the host's ISP!

     

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  2.  
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    silverscarcat (profile), Oct 25th, 2012 @ 3:55pm

    So...

    Iceland's got some good stuff going on...

    Are servers all going to move to Iceland soon?

     

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  3.  
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    Divide by Zero (profile), Oct 25th, 2012 @ 3:56pm

    Maybe they should all just sue themselves for making the content available in the first place, thereby making themselves the original party guilty of facilitating infringement.

     

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  4.  
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    Anonymous Coward, Oct 25th, 2012 @ 3:57pm

    I think they should sue the content creators since they are creating content that is being pirated.

     

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  5.  
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    Chosen Reject (profile), Oct 25th, 2012 @ 4:00pm

    Re: Not good enough

    Personally, I would have gone after the bank for the ISP of the host of the torrent website where people might be sharing torrent files that may or may not contain information about where to find content that is possibly infringing.

     

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  6.  
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    Zos (profile), Oct 25th, 2012 @ 4:02pm

    I wonder how big the data farm business was in the Netherlands last week? i wonder how big it is today... i'm betting this causes some chilling effects.

     

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  7.  
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    Androgynous Cowherd, Oct 25th, 2012 @ 4:06pm

    They've come a long way...

    The Dutch have clearly come a long way since the Karin Spaink/Scientology kerfuffle.

    A long way in the wrong direction.

     

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  8.  
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    Richard (profile), Oct 25th, 2012 @ 4:21pm

    Re: Re: Not good enough

    and the power company that supplies them with electricity!

     

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  9. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Oct 25th, 2012 @ 4:22pm

    SumoTorrent "is clearly facilitating copyright infringement"

    Don't dash past that. You guys keep straining for legalisms to avoid the obvious, but a glance at files is enough to make that determination, and then -- when the required action is merely shutting down a site -- should cause the physical host to take exactly that action. It can be sorted out later.

    That's basically the position I think will emerge. It's NOT a big deal to shut down a site when the evidence is OBVIOUS. Your free speech mantra becomes annoying when other points are clear.

    Warning: bad analogy ahead. -- If you were walking down the street on a hot day and glanced into a car and saw a puppy fading from heat stroke, you have SOME slight obligation to take action. Or should feel some anxiety when matters are CLEAR: even I hate to see puppies suffer.

    So too does a physical network host have duty to make cursory check upon complaint, and IF the evidence smacks 'em literally in the eye, but they stall with OBVIOUS legalisms, then they've taken on SOME liability.

     

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  10.  
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    Anonymous Coward, Oct 25th, 2012 @ 4:40pm

    Re: SumoTorrent "is clearly facilitating copyright infringement"

    I can make a torrent file with the name "Skyfall_007_(DIVX1080p).torrent" that is nothing more than a picture of a tearful eyed puppy. Does that automatically make it copyright infringement? After all BREIN and other groups are well noted for doing the same thing.

     

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  11.  
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    Pwdrskir (profile), Oct 25th, 2012 @ 4:42pm

    Data Dump

    I'm going to open an ISP in the Netherlands right after I finish opening my new science institute in Italy.

     

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  12.  
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    Chronno S. Trigger (profile), Oct 25th, 2012 @ 4:45pm

    Re: SumoTorrent "is clearly facilitating copyright infringement"

    You're an evil infringer of copyright, you must take yourself off the Internet right now.

     

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  13. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Oct 25th, 2012 @ 4:50pm

    The Pirate's Planks: compilation of legalisms / excuses.

    - Forget about the millions of dollars made, there's a technical flaw in the indictment/process, damn it!

    - The corporation isn't in country X, therefore not subject to X's laws.

    - Physical network host has NO responsibility except with court order.

    - You can't tell which files are "infringing".

    - There's too many files to check.

    - Most files shared are personal creations: I put a whole bunch up myself.

    - You shut down my file host and I lost EVERYTHING!

    - Legitimate users will be harmed if action is taken against "pirates".

    - You can't shut down a site without widespread harm: this example of criminally stupid file host that removed 1.5 million blogs over one complaint proves it.

    - They sold the "movie" to me, now I can do what want with it.

    - Google is our friend. Links sites are just exactly like Google. -- You want to stop free speech and ban all search engines!

    - It's just a "links" site, has no "infringing" content. They can't even tell what content the links are for. And there's too many to check.

    - There's a loophole in the law, and we've crawled through it.

    - I have NO moral responsibility to not take the work-product of others. To hell with "copyright".

    - Pirates pay for more music than others. Forget that they steal more too.

    - Piracy is actually helpful to Big Media: it's simply free advertising.

    - Arrrr, I'm a pirate! You can't stop me!



    Just off top of head. Will add to.

     

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  14.  
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    Chronno S. Trigger (profile), Oct 25th, 2012 @ 4:59pm

    Re: The Pirate's Planks: compilation of legalisms / excuses.

    What the hell are you still doing on the Internet? You've been accused of infringing on copyright, you must disconnect yourself by your own logic.

     

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  15.  
    identicon
    Beech, Oct 25th, 2012 @ 5:07pm

    Re: Re: Re: Not good enough

    And the construction company that built the building the electric company occupies!

     

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  16.  
    identicon
    Anonymous Coward, Oct 25th, 2012 @ 7:12pm

    Re: SumoTorrent "is clearly facilitating copyright infringement"

    Aren't you "Dashing the point" yourself? Just because you glance at files and happen to find one that appears to be infringing, that does not mean the host must be FACILITATING that infringement.

    Let's say I have a big wall on my property, and I let some local kids paint on it-- "Bobby + Debbie 4 ever" graffiti and such. One day the cops bust down my door at the crack of dawn, drag me off to jail, and seize my property--all because someone had, without my knowledge, painted a graphic depiction of a child being raped on my wall in the middle of the night before.

    By your logic, it's obvious that I facilitated the graphic image because there it is.

     

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

  17.  
    identicon
    Anonymous Coward, Oct 25th, 2012 @ 7:29pm

    Re: The Pirate's Planks: compilation of legalisms / excuses.

    I know you meant for all these "excuses" to sound wrong and therefor bolster your corporate masters' position, but I'm sorry to tell you that while I was previously on the fence on this issue, I find most of them to actually be quite compelling. I'm now squarely in Mike's camp on the issue. Thank you for helping me see the light.

     

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

  18.  
    identicon
    Scott, Oct 25th, 2012 @ 7:35pm

    Re: The Pirate's Planks: compilation of legalisms / excuses.

    So,OOTB how would you feel if you got caught by the very things you advocate for? Like Mike Foley.

     

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  19.  
    identicon
    Scott, Oct 25th, 2012 @ 7:39pm

    Re: Re: The Pirate's Planks: compilation of legalisms / excuses.

    I don't think he was that began with,He just makes it easier for the other camp to win.

     

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  20.  
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    Hephaestus (profile), Oct 25th, 2012 @ 8:13pm

    Re: SumoTorrent "is clearly facilitating copyright infringement"

    According to EU law they can not look at the files, or do CRC check sums with out violating the law. Privacy and all that.

     

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  21.  
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    Hephaestus (profile), Oct 25th, 2012 @ 8:18pm

    Re: Data Dump

    So let me guess. You like guys in orange jump suits wearing wooden shoes and women who have arm pit hair?

    What is that fetish called?

     

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  22.  
    identicon
    Larry, Oct 25th, 2012 @ 8:30pm

    Re: SumoTorrent "is clearly facilitating copyright infringement"

    At least you admitted up frond that it's a bad analogy.

    That said, you don't care about puppies. You just want someone to think you do so that you can feel good about yourself for kicking in car windows. You know, just like the pretend cops on all the TV show these days that stretch the law to "do the right thing" and the muppets watching "agree" with this because they saw the entire lead in where THE LAW WAS BEING BROKEN, WE SHOULD DO SOMETHING!

    Douche.

     

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  23.  
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    Gwiz (profile), Oct 25th, 2012 @ 8:39pm

    Re: SumoTorrent "is clearly facilitating copyright infringement"

    You guys keep straining for legalisms to avoid the obvious, but a glance at files is enough to make that determination...

    Of all the stupid that you have imparted to us mere mortals, this might take the cake.

    Please explain, in detail, how those of us who are not omnipotent are able to determine the copyright status and specific circumstances surrounding the use of said content from a mere glance.

     

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  24.  
    identicon
    Anonymous Coward, Oct 25th, 2012 @ 10:47pm

    Re: SumoTorrent "is clearly facilitating copyright infringement"

    If a glance at files was enough to determine infringement we wouldn't have the debacle that was Viacom vs. Youtube.

    Why you think bad analogies - self-admitted bad analogies, at that - would help your case is beyond anyone with more intelligence than a bucket of horse manure.

     

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

  25.  
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    The eejit (profile), Oct 25th, 2012 @ 11:37pm

    Re:

    No, that would be rational.

     

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

  26.  
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    That Anonymous Coward (profile), Oct 25th, 2012 @ 11:50pm

    So the Dutch want to drive all hosting out of their country on the heels of wanting the right to go anywhere in the world and destroy computers...

    And how long before we just cut the Dutch off from the net?

    Google has shown this works pretty well.
    Cut off the Belgians to give them what they wanted, and when they notice its not all sunshine and lollipops they come back politely asking to be included again.

    If we just blackhole all of the Netherlands from the rest of the net because of the insane ideas coming out of there, how long until the citizens ask WTF is going on and demand change?

    It appears they are being run by BREIN, who has violated many laws and ruined legal cases with their actions its time to route around the damage until its repaired.

     

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  27.  
    identicon
    Anonymous Coward, Oct 26th, 2012 @ 12:22am

    Re: Re: SumoTorrent "is clearly facilitating copyright infringement"

    So Google and the likes of Youtube should all get taken down because there are illegal links and files on there. Lets all sue them on the same arguement of the Dutch ruling.

     

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

  28.  
    identicon
    Anonymous Coward, Oct 26th, 2012 @ 12:24am

    Re: SumoTorrent "is clearly facilitating copyright infringement"

    So Google and the likes of Youtube should all get taken down because there are illegal links and files on there. Lets all sue them on the same arguement of the Dutch ruling.
    After all everyone owes a duty and is bound to report anything that is illegal don't we so lets all sue the host provider of Google and Youtube and every other site that has illegal links and illegal files on them.

     

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

  29.  
    identicon
    Anonymous Coward, Oct 26th, 2012 @ 12:28am

    Re:

    Lets all cut of the US too.

     

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

  30.  
    identicon
    Anonymous Coward, Oct 26th, 2012 @ 2:51am

    Re: The Pirate's Planks: compilation of legalisms / excuses.

    There's this little pesky thing called laws, due process, freedom of speech. Youknow, those rules that your corporate masters spend so much time and money to get changed in their supposed favor. But nah, fuck that, as long as it's "obvious". Copyright is more important than any of that.

     

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  31.  
    identicon
    Anonymous Coward, Oct 26th, 2012 @ 3:40am

    it sounds to me like the best option for Holland would be for all ISPs to just shut down. perhaps that would keep BREIN and the entertainment industries happy. they could then instigate the closing down of the entire internet, except for governments and businesses, which is the ultimate aim anyway. noi country, government, law enforcement agency or business wants the public using the internet at all, if they can be stopped. if that cant be achieved, allowing the public to use it only in the ways dictated, is the next best thing. you think that isn't the way things are going? wait a couple of years and see what it's like then. and why has it gotten like this? because certain people in certain industries couldn't bear the thought of possibly losing control on how their products were being distributed!

     

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  32.  
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    Niall (profile), Oct 26th, 2012 @ 5:15am

    Re: Re:

    The Netherlands called. They want New Amsterdam back.

     

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  33.  
    identicon
    Anonymous Coward, Oct 26th, 2012 @ 6:05am

    Re: The Pirate's Planks: compilation of legalisms / excuses.

    " The corporation isn't in country X, therefore not subject to X's laws."

    You sir are a fool.

    Do you let your wife out alone in public?
    If so both you and her should be shipped off to an Iraqi prison!

     

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

  34.  
    identicon
    Roman, Oct 26th, 2012 @ 8:02am

    DMCA

    Ah the DMCA - my least-favorite tech law, my least-favorite song by the Village People, and my least-favorite TMNT spin-off.

     

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

  35.  
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    Not an Electronic Rodent (profile), Oct 26th, 2012 @ 8:28am

    Re: Re: Re: Re: Not good enough

    Woah! Woah! If you keep going like that back up the chain, you're going to eventually get to the government that allowed the hosting, electricity, etc companies to exist in their country liable for infringement! ..... oh.. wait.. um, carry on.

     

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

  36.  
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    That Anonymous Coward (profile), Oct 26th, 2012 @ 8:40am

    And the insanity gets better....

    Everyone must be a pirate, so give us a levy on all the new toys.
    https://torrentfreak.com/dutch-get-piracy-levy-for-tablets-phones-and-usb-drives-121025/

     

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

  37.  
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    Rikuo (profile), Oct 26th, 2012 @ 10:16am

    Re: The Pirate's Planks: compilation of legalisms / excuses.

    Yes and each and every single one of those a legitimate and valid point that has been raised time and time and time again here on Techdirt and elsewhere.
    If you now go off on a tangent and say they're not, you're saying you don't care at all what anyone else has to say about copyright: to protect it is the holiest duty of all and to even question it is to tempt the Wrath of God.

     

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

  38.  
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    Rikuo (profile), Oct 26th, 2012 @ 10:17am

    Re: Re: The Pirate's Planks: compilation of legalisms / excuses.

    Welcome to the team! *Big round of applause is magically heard*

     

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

  39.  
    icon
    Not an Electronic Rodent (profile), Oct 26th, 2012 @ 10:40am

    Re:

    ... and even if such a thing happened it still wouldn't prevent "piracy".

     

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

  40.  
    icon
    MahaliaShere (profile), Oct 26th, 2012 @ 10:55am

    Re: And the insanity gets better....

    "The money that’s collected, up to 5 euro per device, will be distributed to copyright holders."

    Copyright holders, not the artists who created the content. Because morality!

    I do like the article image though. Something about it...

     

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

  41.  
    identicon
    Anonymous Coward, Oct 26th, 2012 @ 1:55pm

    Re: Re: And the insanity gets better....

    When I see these sorts of schemes I always wonder who decides how much each copyright holder gets. Are foreign copyrights included? Does somebody with one published poem get the same share as ABC/Disney or Viacom?

    And most importantly, how much do I have to publish to get my "share"?

     

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

  42.  
    identicon
    ddd, Oct 26th, 2012 @ 2:12pm

    'That seems like a great recipe to get a bunch of Dutch hosting companies to reconsider even being in business.'

    Which is what the MAFIAA actually want. To close down the internet is to end the exchange of information.

     

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

  43.  
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    RonKaminsky (profile), Oct 27th, 2012 @ 10:01am

    Re: Re:

    Outlawing communication might work --- but then they'd have a hard time letting people know about the new law, I suppose.

     

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

  44.  
    identicon
    ameliorer référencement web coût, Oct 30th, 2012 @ 12:29am

    Au passage, très bien votre blog :) Je dois dire que je ne regrette en rien de m'être abonné à votre weblog. bonne continuation.

    formation seo http://referencersonsitegoogle.wordpress.com référencement site web

     

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


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