EU's Advocate-General Says Dutch Allowing Unauthorized Downloads Is Incompatible With European Copyright Law

from the that's-awkward dept

Back in 2012, Ben Zevenbergen wrote a long piece exploring a complicated Dutch case that had been referred to the Court of Justice of the European Union, the EU's highest court. It concerned the home-copying exception of European copyright legislation, and hinged on the question of whether the Dutch collecting society could charge for the "losses" that result from people downloading both authorized and unauthorized uploads. That distinction needs to be made, since in the Netherlands downloading copyright material is permitted, but uploading it is not. Manufacturers of blank media claimed that they should only have to pay a lower copyright levy that covered just the downloads of legally-uploaded materials.

As is usual in cases sent to the Court of Justice, the EU's Advocate-General (AG) gives an opinion first. Although not binding, that opinion is usually indicative, and rarely ignored. Here's what the Advocate General P. Cruz Villalón has said in this case, as reported by the Future of Copyright site:

The AG notes that the reasoning of the Dutch government has its origin in the fact that the Dutch law tolerates that unauthorized work or material is downloaded from illegal sources and only uploads can be curbed. "Thus the Kingdom of the Netherlands supports indirectly but inevitably, the mass distribution of products resulting from an illegal exploitation of protected works and materials", which, according to Villalon, cannot be regarded as normal. "The trivialization of downloading content that circulates online without proper authorization […] undermines the normal exploitation". This practice is not compatible with the basic idea of EU copyright law, in which it is established that copyright holders are entitled to fair compensation, said Villalón. Furthermore, the AG is of the opinion that current levy rates on empty media carriers are too low to generate a fair compensation.
On that basis, he advised the court to hold that copyright levies should not be allowed on unauthorized downloads. That's a win for the blank media manufacturers, but the Advocate-General's comments about the Dutch approach to filesharing being incompatible with EU copyright law will be problematic for the Netherlands if the Court of Justice agrees.

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Reader Comments (rss)

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  1.  
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    Ninja (profile), Jan 10th, 2014 @ 4:02am

    If you need a levy on whatever to sustain your business you are either incompetent or want free, easy money (meaning you are a lazy corrupt ass). Which one is less damning for the MAFIAA?

     

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  2. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_anus, Jan 10th, 2014 @ 6:02am

    *Insert Typical OOTB rants and attacks *

     

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  3.  
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    Shadow Dragon (profile), Jan 10th, 2014 @ 6:06am

    Re:

    I wonder why no one called OOTB that,after all he post is shit.

     

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  4.  
    identicon
    Guardian, Jan 10th, 2014 @ 6:09am

    levies are the end solution

    too bad they nor anyone sees it....

    and i had idea you have a net vote and put 5 guys on a council and let 4 seats by industry and then they can vote on implementation and cost.

    keeps the power to the people ideal...

     

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  5.  
    identicon
    Just Sayin', Jan 10th, 2014 @ 6:10am

    "If you need a levy on whatever to sustain your business you are either incompetent or want free, easy money "

    The answer is neither. They want the right to sell their product and not have everyone just take a copy like it's nothing, that's all.

    If you want the product, pay for the product. If you don't want the product at the price offered, live without it. You have no inalienable right to be entertained.

    If there is a business model for giving stuff away, people would be doing it already. It works in some ways for phone apps, but it doesn't seem to work very well on a bigger scale for music and particularly movies. So far most of what we see is the rich getting richer, and the guys who were in the middle to lower ranks sharing a smaller pie with much more competition - including their own products for free.

    It's not a happy situation for anyone.

     

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  6.  
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    DannyB (profile), Jan 10th, 2014 @ 6:14am

    Don't allow downloading Unauthorized content

    So exactly how is an ISP to determine whether content is unauthorized?

    Hollywood cannot even determine whether something is unauthorized. The right hand uploads promotional videos while the left hand takes them down. An artist uploads authorized promotional materials and hollywood takes them down. Someone uploads birds chirping and Hollywood takes it down, and doubles down saying yes it is copyright infringement.

    Something may also be clearly, unmistakably fair use and Hollywood is unable to make a reasonable determination of whether it is fair use.

    So how exactly is an ISP to know if something is fair use? (Extra credit: how is Google to know if something is fair use?)

    With the Internet now getting more secure and with more and more encryption, there will be another question to ask soon. How can an ISP even know what you are downloading? Or even if what you are doing is downloading vs some other activity that sends packets to your computer? (And why would it be any of their business?)

     

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  7.  
    identicon
    Anonymous Coward, Jan 10th, 2014 @ 6:22am

    Re: Re:

    Out Of The Bottom

     

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  8.  
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    Pragmatic, Jan 10th, 2014 @ 6:32am

    Re: Don't allow downloading Unauthorized content

    The right hand uploads promotional videos while the left hand takes them down. An artist uploads authorized promotional materials and hollywood takes them down. Someone uploads birds chirping and Hollywood takes it down, and doubles down saying yes it is copyright infringement.


    So much for "I made it, so I own it." Yet the maximalists' whining continues unabated.

    Something may also be clearly, unmistakably fair use and Hollywood is unable to make a reasonable determination of whether it is fair use.

    Hollywood wants fair use to ONLY apply to them, but ding the rest of us for every beat and syllable. If Chris Dodd recited the Pledge of Allegiance, I'd check it twice.

    We need fair use and the public domain, and we need to get away from our obsession with applying property rights to everything, particularly culture and ideas.

     

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  9.  
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    Anonymous Coward, Jan 10th, 2014 @ 6:32am

    Re: levies are the end solution

    Levies make collection societies rich, and allow media producers to increase costs further by adding in the administration costs. They are an expensive way of supporting creators, if any money actually gets to them. Levies are very good at creating jobs that are parasitic on creators; where rewarding them for there efforts is an excuse for building a bureaucracy that keeps most (or all) of the money raised.

     

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  10.  
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    Anonymous Coward, Jan 10th, 2014 @ 7:00am

    Cue BREIN suing The Netherlands government with being in breech of EU copyright law but if the The Netherlands government caves in and makes downloading of copyright illegal and removes the levy charge on media which was compensation for downloading copyright then BREIN will insist on keeping the levy charge on media as they will not want to give this money up even if The Netherlands government makes downloading illegal. BREIN of course want to have both the cake and allowed to it.

     

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  11.  
    identicon
    Anonymous Cow, Jan 10th, 2014 @ 7:04am

    Internet Toll Booths

    Somebody's gotta go back and get a shit-load of dimes!

     

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  12.  
    identicon
    Anonymous Coward, Jan 10th, 2014 @ 7:06am

    A Balanced Approach to Patent Reform: Addressing the Patent-Troll Problem Without Stifling Innovation

     

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

  13.  
    identicon
    Anonymous Coward, Jan 10th, 2014 @ 7:08am

    the thing that really pisses me off and, i am sure , a whole lot of others is that the obvious answer, the making available of copyrighted material from legal sources, as soon as possible after the theatrical release, at good speeds, of VERY good quality, at sensible prices, is never ever mentioned! it's never ever suggested! it's definitely never made compulsory, because if everyone affiliated to these 'abuses of copyright' were in the least bit interested in stopping it, the 'powers that be' would force suitable laws into place that accomplished these things. instead, they are always left out but the same 'powers that be' quickly jump on the 'new law' bandwagon to go after file sharers in more ways, quicker and with greater penalties! instead of finding some common ground, whereby the people are given suitable and sensible alternatives, every time those alternatives are totally brushed aside, just to be able to bankrupt more people and destroy more families!

     

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  14. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Jan 10th, 2014 @ 7:37am

    Yet again, minion and pirates surprised by copyright law.

    EU AG just gives long version of simple common law: "I made it therefore I own it, you do not". ONLY the copyright owner is entitled to exploit or give away copies or in any other way dispose of or gain income from the created works. What the hell is so difficult to understand there, or about that you kids wish to steal and enjoy the content without paying?

    My work here is nearly done: copyright law is being upheld throught US and EU. -- I'll always favor producers of CRAP over those low enough to steal CRAP! -- Mike and his shrinking band of pirates are down to where they're cheering vulgar words instead of at all able to deal with topic.

    Thanks to all the vile kids above who show Techdirt's true level of discourse!

    Keep perspective, kids: Megaupload is not the leading edge of new content delivery modes, it's just trailing edge of theft from the old producers who are well justified in stomping out piracy.

    03:33:37[d-090-1]

     

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  15. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Jan 10th, 2014 @ 7:47am

    Re: Re: Don't allow downloading Unauthorized content

    @ "Pragmatic"
    So much for "I made it, so I own it."


    Did you read the piece or just the little pirate's loony notions? -- Bet you're unable to grasp the stilted language.

    "The trivialization of downloading content that circulates online without proper authorization [] undermines the normal exploitation". -- That means piracy or sharing is stealing and is prohibited by simple morality that says rewards and even the possiblity of gaining rewards is rightfully solely for the creator.

    "EU copyright law, in which it is established that copyright holders are entitled to fair compensation," -- That means they made it, therefore they own it, and are entitled to get whatever money comes from it.

    Basic incomprehension of "I made it therefore I own it" is the rule at Techdirt because they're just piratey fanboy kids wanting to steal mindless entertainments. I'm forced to side with the producers of content, odious as they are.

    If Mike supports copyright, why are the pirates here? They take him same as I do: PRO-PIRACY!

    03:45:23[d-026-5]

     

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  16.  
    identicon
    Anonymous Coward, Jan 10th, 2014 @ 7:53am

    Re: Yet again, minion and pirates surprised by copyright law.

    "I made it therefore I own it, you do not"

    By which token the RIAA and MPAA, to name just two, would not own anything either, since they make absolutely nothing and just take from artists.

     

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  17.  
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    Anonymous Coward, Jan 10th, 2014 @ 8:03am

    Re: Re: Yet again, minion and pirates surprised by copyright law.

    And if copyright only applied to the actual artist/creator of said work and was only given to said artist/creator and not to anyone else and that copyright cannot be transferred to anyone else then the MPAA/RIAA wouldn't be able to have copyright or pursue copyright infringement at all.

     

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  18.  
    identicon
    Anonymous Coward, Jan 10th, 2014 @ 8:08am

    Re: Re: Re: Don't allow downloading Unauthorized content

    Then why do the record labels exist? They sure as hell didn't create it.

     

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  19.  
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    Seegras (profile), Jan 10th, 2014 @ 8:16am

    The Advocate-General is an idiot who does not know the Law

    Copyright is, and was, ALWAYS about publishing. And never about "receiving" or "getting" something.

    Now, just about every copyright law on earth is about this. Except the german one, they recently included a paragraph where they made "downloads from an illegally published source" illegal. Which is of course an epitome of stupidity, because no one except a judge can tell whether something was "illegally published".

    Of course, nowhere in the http://en.wikipedia.org/wiki/Copyright_law_of_the_European_Union (which is actually a series of directives aimed at harmonizing the laws of the different countries), there is anything written about "receiving". So this Advocate-General obviously don't know his law.

    Furthermore of course, everyone is a copyright holder. I have a blog, I post photographs on the internet, thus a lot of what I am doing is copyright protected. Now, what happens if you download a picture of a cute cat from the internet, which somebody put up there, without having it made himself? If the AGs view of the law was only remotely correct? Yep, copyright violation. Because nobody ever gave you an explicit permission. In fact, if the AG were right, we'd find hundreds if not thousands of files (especially emails!) on his computer which would constitute a copyright violation according to his own misinterpretation of the law. I could even make him break the law by e-mailing him something which I do not have the necessary publishing rights for. Ridiculous.

    Or let's take another angle: How do I now some TV-station has the necessary rights to show a movie that was obviously made by someone else? Do they need to publish all the contracts they have with the movie studio? Because if they don't everyone can call "copyright violation". And the movie studios, do they need to publish all contracts with the people that actually made the movie, because otherwise anyone can call them for "copyright violation"? It's probably not what the AG was thinking of, which just shows he wasn't probably thinking at all...

    In other words, its totally, completely, utterly impossible to know if _anything_ is "legally published". Yes, it's possible for the copyright-holder to recognize his own work, and then for a judge to decide whether that claim has any merit. But before that happens, nobody can really know.

    And that is the reason, (most) copyright laws are not about the receiving but only the publishing end.

     

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  20.  
    identicon
    Pragmatic, Jan 10th, 2014 @ 8:30am

    Re: Re: Re: Don't allow downloading Unauthorized content

    "EU copyright law, in which it is established that copyright holders are entitled to fair compensation," -- That means they made it, therefore they own it, and are entitled to get whatever money comes from it.


    If the artist made it, shouldn't he or she be the one who owns it, by your own warped standard, and assuming for the moment the idea that all new works are created in a vacuum and are therefore completely original?

    Except that we've established that copyright holders and artists are often completely different people. Work for hire, anyone? What happens after the death of the artist? Should the copyright not die with him or her as their descendants, etc. haven't made the item in question?

    Cognitive dissonance, much? I see you are unable to grasp the simple language of my esteemed fellow poster DannyB.

    You're not "FORCED" to side with anyone, you're just so deluded in your fantasies of class warfare and property rights on ideas that you end up being funnelled into your current position. Just admit you can't make money from selling copies of your work because you have no fans to make it from. End of problem, as you'll then be able to see things our way.

    Which, of course, is the problem: your gigantic ego won't allow it.

     

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  21.  
    identicon
    Pragmatic, Jan 10th, 2014 @ 8:37am

    Re: Yet again, minion and pirates surprised by copyright law.

    So speaks OOTB, lover of "The Rich."

    Notice that at no point does she mention the artists as the beneficiaries of the copyright income, but the "owner," who is, more often than not, NOT the creator.



    Thanks to the vile OOTB for revealing her true, odious colors

    Pirates actually do more to ensure that artists are compensated than their so-called representative agencies

     

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  22.  
    identicon
    Anonymous Coward, Jan 10th, 2014 @ 9:20am

    "EU's Advocate-General Says Dutch Allowing Unauthorized Downloads Is Incompatible With European Copyright Law"

    Or, or, now bare with me here

    "EU's Dutch Says EU's Advocate-Generals Stance And Actions On Allowing Unauthorized Downloads Is Incompatible With Basic.Human.Right"

    just saying.

     

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  23.  
    identicon
    Anonymous Coward, Jan 10th, 2014 @ 10:47am

    Re: Re: Re: Don't allow downloading Unauthorized content

    "The trivialization of downloading content that circulates online without proper authorization [] undermines the normal exploitation"


    While I was reading that part the only thing that popped in my mind was "[citation needed]". There was a report recently that stated the Beatles were the most pirated artists in the world (http://www.nme.com/news/the-beatles/73713). With a sane copyright duration, those songs would be public domain. In fact, I haven't seen much work coming from the Beatles recently. So far for continued incentives. Also, there have been studies that show that pirates buy *more* music, not less (http://www.techhive.com/article/2012121/pirates-buy-more-music-than-legal-downloaders-study-shows.h tml). Bye bye economic argument.

    That means they made it, therefore they own it, and are entitled to get whatever money comes from it.


    No it does not. It means they are entitled to fair compensation, not that they get to dictate how it's used, consumed, and distributed forever. If other people can find a way to make money from it, cheers to them, as long as the original creator gets a fair compensation, not every single dime.

     

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  24.  
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    John Fenderson (profile), Jan 10th, 2014 @ 2:46pm

    Re:

    now bare with me here


    Oh, fun! A naked party!!

     

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  25.  
    identicon
    Anonymous Coward, Jan 10th, 2014 @ 4:48pm

    Levies and Dykes

    ..and fingers temporarily plugging holes - never mind. I don't need to be hassled by lesbians.

     

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

  26.  
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    BernardoVerda (profile), Jan 10th, 2014 @ 5:42pm

    Re: Don't allow downloading Unauthorized content

    That's a terrific nutshell summary of the.

    (OK if I plan to plagiarize it shamelessly?)

     

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

  27.  
    identicon
    Anonymous Coward, Jan 10th, 2014 @ 6:56pm

    Re: Levies and Dykes

    Well, it's been nice knowing you. No one ever alludes to a negative expression of a lesbian lifestyle and gets away with it alive.

     

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

  28.  
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    John Fenderson (profile), Jan 12th, 2014 @ 11:49am

    Re: Levies and Dykes

    I dunno. For me, a "dyke" is and always will be a a pair of side-cutting pliers.

     

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

  29.  
    identicon
    Anonymous Coward, Jan 12th, 2014 @ 6:05pm

    Re: Yet again, minion and pirates surprised by copyright law.

    I think that I finally have you worked out Out_of_the_Blue.

    You came to Hollywood in the 60s to be an actress, but the only work you could get was in porn, and not the classy sort of porn, but the sort that cannot get copyright protection in Germany.

    That would explain your inability to understand technology, and the love you have for Hollywood and porn producers. Why you sympathise with the scum of the earth. (Lawyers, bankers and the rest of the fraudsters)

     

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

  30.  
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    Anonymous Howard (profile), Jan 14th, 2014 @ 6:13am

    Re:

    I doubt the artists (who are supposedly compensated by this shit) see as much a dime from levies.
    But it requires a hefty collection agency to handle all the monies, which is good I guess.. After all, it creates jobs, no?

     

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


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