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.