Techdirt. Stories filed under "netherlands"

Dutch Law Would Authorize Police To Hack Into Foreign Computers And Phones: What Could Possibly Go Wrong?

Glyn Moody — Tue, 7 May 2013 12:11:42 PDT

When we wrote last year about a Dutch idea to give police there the power to break into computers -- even those located abroad -- we and many others pointed out a number of deep flaws with the plan. Undeterred, the Dutch government seems to be going ahead with the scheme, as Bits of Freedom explains:

The police should be allowed to hack into mobile phones and computers, even when these are located abroad. This is proposed by the Dutch government on May 2nd of 2013. While this appears to be a powerful asset for law enforcement, in reality it creates unnecessary vulnerabilities for citizens.

Not content with that really bad idea, there's a couple of others tacked on for good measure, as the BBC reports: The bill would also make it a crime for a suspect to refuse to decipher encrypted files during a police investigation.

It is expected the draft legislation will be put to parliament by the end of the year.

The bill singles out child pornography and terrorism as two areas of special concern. The publication of stolen data would also become punishable.
It's easy to see how the last of those could be abused to silence inconvenient whistleblowers. Bits of Freedom sums up well the key danger with the bill: other countries, such as China, will use the powers as a justification for their own activities. They will follow the Dutch example by allowing their police to use the same methods, including hacking abroad, in order to delete controversial data. Civilians will become the victims in an arms race between hacking governments.
Indeed, it's worth considering for a moment what the Chinese response will be when it finds Dutch police, with the full approval of the Dutch government, deleting files or installing spyware on computers on its territory. It won't matter if the latter were involved in breaking into Dutch systems, or controlling a global botnet: national pride will be at stake over what will effectively be an attack on Chinese citizens and property. So as not to lose "face", a robust response is guaranteed. Is the Netherlands (population ~~6,065,459~~ 16,788,973) really ready to take on China (population 1,353,821,000) over this?

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Permalink | Comments | Email This Story

Dutch Parliament Member Fined For Hacking; He Says He Was Just Exposing Security Flaw

Mike Masnick — Mon, 18 Feb 2013 13:18:13 PST

A few folks sent over this story of Dutch Member of Parliament (MP) Henk Krol being fined about $1,000 for "hacking." He claims that he was just exposing poor security on the part of a Dutch medical laboratory called "Diagnostics for You," which he felt was especially important since there are stricter privacy rules for medical info. Of course, "hacking" is used loosely here: basically, a patient overheard an employee at Diagnostics for You reveal the system password while he was in the lobby, and that patient passed the password along to Krol. So, the "flaw" could be as simple as a stupid employee revealing their password out loud (though, you could argue that a system like that should require two-factor authentication or some other more advanced security than a simple password).

Either way, the court recognized that Krol's intentions may have been in the right place, but faulted him for viewing and printing "more files than necessary" to make his point -- and also for going to the press with his findings at around the same time he notified the laboratory. The court said simply finding the flaw and even downloading some records to prove it to the lab would have been fine, but that he went too far (even if he carefully redacted personal info). And then going to the press immediately when the problem seemed to be more a case of a bad employee revealing their password, just seemed like too much. As the court noted: "the problem was not so acute that immediate use of media was necessary."

Of course, this kind of thing is often a struggle when it comes to security hacking. Different people have different opinions on whether or not it's appropriate to go to the press, and also how much information to access. But it seems to be handled on a case by case basis, rather than with clear rules. There are some norms among security researchers -- and that tends to include giving a company some period of time to fix things -- but this remains an area of the law that is sometimes a bit fuzzy. You want companies to respond quickly to security flaws, and sometimes going to the press ensures getting a real response faster. But, it also seems less likely to cause significant damage if you contact them first.

Perhaps MP Krol can now try to pass some legislation with standards on how to handle security breaches found without having them turn into legal cases against the researchers.

Permalink | Comments | Email This Story

Dutch Government Realizes That Non-Original Works Don't Deserve Copyright

Mike Masnick — Thu, 14 Feb 2013 07:45:53 PST

For many years, we've discussed how Europe allows for a "database right" on collections of works, while the US forbids it. The US considers a database right improper, since copyright is not supposed to apply to facts and isn't supposed to be given out solely based on the "sweat of the brow," but rather to incentivize creativity. The Europeans, on the other hand, argued that the labor of putting together a database needed to be protected to create the necessary incentives for a thriving information/database industry. In many ways, this has created a useful natural experiment concerning copyright law and whether or not it actually creates incentives. The data has been overwhelming. Without a database right, the database industry in the US has thrived, while the same market in the EU has stagnated.

And yet, many in Europe (and some in the US) still see good things in such a government granted monopoly. We were just talking about how clinging to this outdated and clearly failed concept was now threatening important moves towards open data.

Thankfully, it appears that at least one European country has realized how damaging such rights are, and is moving in the other direction. The Dutch government, which has a number of politicians who really seem to get this stuff, is apparently trying to "modernize" its copyright law by removing protection for any "non-original" works such as databases. The link from the Future of Copyright site notes that the database right -- called "geschriftenbescherming" -- is being removed, as officials are noting that copyright should be focused on creativity, not merely protecting the upfront investments of publishers and printers:

The modernization of copyright law in the Netherlands will be done in two ways. Firstly, modern copyright will only serve to protect creative performances. Since ‘geschriftenbescherming’ does not cover any creative performance, this will now be removed. Secondly, the Dutch government believes copyright should not inadvertently preclude the creative reuse of existing material or the innovative use of information and easy exchange thereof. The protection of non-original works is often invoked to regulate parallel import instead of merely protecting the publisher’s or printer’s investment. By removing the additional protection under copyright law, the exchange and re-use of these works may be simplified. Also this could remove a legal barrier to the use of open data.

As noted in that last sentence, this story is almost the polar opposite to the one we just had about this same concept being used to hold back open data. This would be a nice step forward for the Dutch, and hopefully other European countries will quickly get with the program as well.

Update: In the comments someone points out that this is related to the EU Court of Justice ruling we wrote about last year, which noted that copyright rights need to include an element of creativity and that you can't just copyright facts.

Update 2: More information from the comments, which argues that, despite great similarities between the database right and geschriftenbescherming, this only impacts the latter not the former. The specific issue appears to be that geschriftenbescherming falls under copyright law and copyright law requires creativity (as noted in the story from last year). Yet database rights, fall under the database directive, and don't require any creativity (which is silly, for reasons we explained earlier). We apologize for any confusion and would like to thank the commenter for adding further details.

Permalink | Comments | Email This Story

Embedding And Linking Deemed Infringing In The Netherlands; Downloading... Not So Much

Mike Masnick — Thu, 27 Dec 2012 10:55:00 PST

Here are two copyright stories coming out of the Netherlands, one good and one bad. The first is that the Dutch government has rejected an effort to make downloading copyrighted works for personal use infringement. There is, of course, an existing "you must be a criminal" tax on blank media there, which is part of the reason why such downloads are considered okay. Of course, now we only have to wonder how long it will be until the Netherlands shows up on the US's Special 301 report for "naughty" countries who don't follow Hollywood's extreme maximalist positions.

Of course, the entertainment industry may be much happier about a different copyright issue in the Netherlands. A court ruling in The Hague found that "embedding or linking to radio-streams without a license constitutes a violation of copyright." This is particularly crazy because it includes linking to a station's own stream. Yes, you read that right. This isn't talking about pointing to infringing streams, but to legitimate ones. And the court still found it to be infringing.

‘Nederland.fm’ embeds radio-streams from other (official) radio websites, while ‘Op.fm’ offers hyperlinks to those streams. Buma/Stemra argued that the websites enable users to listen to the music offered on the streams, and that this should be constituted as a ‘publication’ of the music to the public. The court followed this reasoning, primarily based on the fact that ‘Nederland.nl’ and ‘Op.nl’ not only offer streams or links, but they capture the consumer on their page, by playing the music within their own environment and because this environment, including ads, stays visible after clicking the links and buttons of radio stations.

That makes no sense at all. Just because someone makes money in some other manner doesn't mean they automatically owe money to someone else when they were using their legal streams. Unfortunately, we keep seeing wacky rulings like this around the globe that just muddy the picture when it comes to creating sensible copyright policies.

Permalink | Comments | Email This Story

US Government Agencies Will Soon Be Able To Access Foreign Medical Dossiers Due To Patriot Act

Ben Zevenbergen — Fri, 7 Dec 2012 02:07:57 PST

The US Patriot Act has suddenly scared an entire nation, and it's not the US itself this time. The Netherlands is currently going nuts about the US government being able to request medical details of all its citizens when the Dutch Electronic Patient Database (EPD) is implemented next month. This will not be the only country that freaks out because of the Patriot Act, as this sort of thing is likely to happen a lot more often. A recent study explained that US government agencies can secretly request anyone's data if they are using a cloud-computing service which 'conducts systematic business in the US'. It is already sufficient when the service provider is somehow a subsidiary of a US company.

That turns out to be a problem in the Netherlands, because the company that has developed the EPD and will be hosting the patients' data on its cloud computing systems is the US-based CSC. The Dutch government and the organization responsible for implementing the EPD are convinced there is no problem, because there are clear contracts which have assigned Dutch jurisdiction, and fortunately the Dutch have stringent data protection laws that will protect patients' sensitive data. Because that's what data protection laws do, right?

False! At least with regard to information law, researchers from Amsterdam University warn that this analysis is way too simplistic. According to the scholars, it is quite possible the US government agencies can circumvent data protection laws and could easily request access to medical information of every single person in the Netherlands. The study doesn't just cover the Netherlands (though it is especially timely for that), but rather looks at how these risks may apply more globally. Here are just a few of the findings that should raise eyebrows across the globe:

"When using a cloud service provider that is subject to U.S. jurisdiction, data may be requested directly from the company in question in the United States. […] From a legal point of view, access to such information cannot be denied and cloud service providers can give no guarantees in this respect. […] The possibility that foreign governments request information is a risk that cannot be eliminated by contractual guarantees. Nor do Dutch privacy laws offer any safeguards in this respect. […] It is a persistent misconception that U.S. jurisdiction does not apply if the data government requests for information do not apply to Dutch users of the cloud. […] legal protection under specific U.S. laws applies primarily to U.S. citizens and residents. […] Given the nature of intelligence work, it is not possible to gain insight into actual requests for information by the U.S. authorities […] Cloud providers will typically not be able to disclose whether such requests are made"

If the above doesn't yet lead to a new international outrage against the US Patriot Act, then the following sentence on the extra-territorial effects of the Patriot Act should at least send shivers down the spines of sovereignty-loving non-US government officials:

"The transition to cloud computing will, in principle, result in a lower degree of autonomy [...]"

Permalink | Comments | Email This Story

Skype Accused Of Handing Out Private Info To Private Company

Mike Masnick — Tue, 6 Nov 2012 15:51:04 PST

Over the last year or so, there's been concern about Skype's commitment to privacy following its acquisition by Microsoft. Now a situation in the Netherlands is serving to renew those fears. As highlighted by Slashdot, it appears that Skype handed over information on a 16-year-old user to a private information technology firm that was investigating some denial of service attacks against PayPal.

The security firm, iSIGHT, was hired by PayPal to investigate the attacks, and an employee of the company reached out to Skype seeking information about one user who he thought might be involved. And Skype coughed up the info -- including username, real name, email address and home address -- no questions asked. As the article notes, there was no court order or anything like that. Just a guy from a private company asking and Skype said, "sure, here's all the info."

There are questions about whether this move violated some European privacy directives. At the very least it seems clear that it violated Skype's own policies, which include not providing customer data unless required by law, or if official law enforcement is involved. In this case, neither thing is true. One hopes that this is just a one-off mistake by Skype, but it's worrying nonetheless.

Permalink | Comments | Email This Story

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

Mike Masnick — Thu, 25 Oct 2012 15:33:49 PDT

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.

Permalink | Comments | Email This Story

Dutch Propose Powers For Police To Break Into Computers, Install Spyware And Destroy Data -- Anywhere In The World

Glyn Moody — Thu, 18 Oct 2012 10:29:48 PDT

Techdirt readers with long memories may recall a fantasy proposal from Orrin Hatch that would have seen technological means deployed to destroy the computers of those who downloaded unauthorized copies of files. Of course, the idea was so ridiculous it went nowhere. Now, nine years later, a similar idea has turned up, but with a rather better chance of being implemented, since it comes from a national government:

On 15 October, the Dutch ministry of Justice and Security proposed powers for the police to break into computers, install spyware, search computers and destroy data. These powers would extend to computers located outside the Netherlands.

The plan of allowing the police to break into domestic computers and install spyware is bad enough, as the German experience shows. There, it turned out that the malware employed had such serious flaws that anyone could take control of a machine infected with it. But the idea of giving Dutch investigators permission to break into computers anywhere in the world is even worse. The article from the digital rights group Bits of Freedom, quoted above, explains why: If the Dutch government gets the power to break into foreign computers, this gives other governments the basis to break into Dutch computers which infringe the laws of their country. The end result could be less security for all computer users, instead of more. This is even more true with regard to the power to destroy data on foreign computers; it is likely that other governments would be very interested in using such a power against Dutch interests.
Even totally law-abiding users might be caught up in this digital war: Furthermore, providing the government the power to break into computers provides a perverse incentive to keep information security weak. Millions of computers could remain badly secured because the government does not have an incentive to publish vulnerabilities quickly because it needs to exploit these vulnerabilities for enforcement purposes.
It's not really down to governments to publish details of flaws, but it's possible they might be less inclined to encourage the public to patch them, if they want to use the vulnerabilities themselves. This would doubtless lead to criminals taking advantage of widespread holes in security, with personal data being stolen, and financial systems compromised.

All-in-all, the Dutch proposal has to be one of the most foolish ever presented by a government in this area, and shows the folly of trying to come up with quick fixes for the currently-fashionable issue of "cybercrime", instead of really thinking through the consequences. Let's hope calmer heads prevail, and the proposal is withdrawn.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Permalink | Comments | Email This Story

Absurdity Of Copyright Policy Leaves Dutch Supreme Court Confused

Ben Zevenbergen — Tue, 25 Sep 2012 10:33:00 PDT

The Dutch Supreme Court (Hoge Raad) has posed some pre-judicial questions to the Court of Justice of the EU regarding the home-copying exception in European copyright legislation -- raising significant questions about what is legal under EU rules and how it meshes with how people actually consume music. Of course, all it really seems to demonstrate is just how messy the copyright system is today. When the top judges of a country cannot figure out the seemingly simple question of whether downloading music and films is legal or not -- mainly due to a huge patchwork of amendments to copyright law over the years -- something needs to change. Drastically. Let's see if we can make some sense of it:

In essence, the home-copying exception allows people to make copies for non-commercial home uses. Such an exception makes a lot of sense, because these private copies are largely impossible to enforce anyway. A levy is imposed on manufacturers of blank media to compensate rights holders for the supposed "losses" from foregone license fees.

The case in question concerns a group of these blank media manufacturers, who refuse to pay the full levies imposed by the collecting society in charge of the compensation for the home-copying exception. The collecting society considers it fair to charge for "losses" that stem from people downloading unauthorized uploads. You see, in the Dutch system, there is a chicken and the egg problem where you may download copyright protected content, but you may not upload (not unlike its policy for marijuana where buying and selling is tolerated, but growing is not). Any uploaded material is therefore often considered to stem from an illegal source. There is a huge political debate about the desirability of this construction in the Parliament.

The Netherlands is one of the few countries that has a system like this, where the end-user is partly taken out of the equation for copyright infringement. This is due to a particularity in European copyright, which is a headache to comprehend, but necessary to understand the confusion of the Court. Here’s a quick summary:

The EU legislator adopted the so called "Copyright in the Information Society" Directive in the year 2001, which was supposed to "adapt legislation on copyright and related rights to reflect technological developments" and make sure all 27 copyright systems in the EU would become more or less uniform. The hope was that this would knock out some of the problems of very different systems, and create a better "single market" for European content.

Of course, no copyright law is complete without the important exceptions and limitations, like the fair-use doctrine in the US. However, in the case of the copyright directive, the exceptions and limitations were optional for Member States, thereby effectively eliminating any chance for a uniform (or "harmonized") copyright legislation in the EU and thus missing the point completely. Information activist Smari McCarthy explains the resulting chaos well:

The directive outlines 21 different optional exceptions or limitations to the right of reproduction of copyrighted works. Each country implementing the directive can choose to either include or leave out the exception clause. This gives us 2,097,152 different ways to implement the directive.

Now repeat this for the 27 Member States, and you see where this fragmentation exercise is going. Since only a few countries have also implemented this home-copying exception and there has not yet been a legal conflict about it, no jurisprudence exists on which the Dutch court can rely. The exception reads as follows:

Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases: [...]

[...] in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject matter concerned;

As you see, this text does not include any information on whether the fair compensation should be based on only foregone license fees (implying only copies from legal sources), or whether all copying on blank media carriers should be included.

When the collecting society proposed to start charging for copies from illegal sources in 2008, the manufacturers of blank media went to court hoping for a ruling that levies should only be payable for copies which are allowed under the copyright directive, thus only from legal sources (as this would decrease the levy significantly).

If you read through the lines of the courts’ analysis (and if you understand Dutch), I think you can see quite clearly that the judges tried their utmost to find a way to reconcile this copyright exception with the way people share and use works online. The Court states it would like to give rights holders a fair compensation via a levy system for losses from piracy, but it is unsure if EU law allows this. In its questions, the Court proposes some ways of establishing the mechanism for fair compensation and asks the European court whether this would be permissible under law. The questions asked by the Court are rather technical in nature, but here’s a quick summary of the main points (my interpretation, not a literal translation!):

1. Can the home-copying exception be interpreted so that the exception applies to all copies, regardless of whether the original was an authorized source? Or does the exception only apply to copies, which are derived from an original, which does not infringe copyright itself?
2a. Can the three-step test be used to expand the scope of the exception to include all copies?
2b. Is the Dutch construct – where downloading from any source is legal – in conflict with EU law? Would it help to mention that feasible technical tools to counter the making of private copies is not yet available, which may influence your decision regarding the three-step test? [...]

Dutch internet lawyer Christiaan Alberdingk Thijm is confused about the Courts’ deliberations:

I find it remarkable that Court contemplates a compensation paid for downloading copyright protected works from an illegal source, but that this does entail that the act of copying of this content is permissible under law. In my opinion, there are simply just two options: either it is permissible to make private copies from an illegal source and we pay the levy, or it is illegal and we don’t pay the levy. I do not agree with the current system either, though, where downloading from illegal sources is permissible but no levies are charged over this.

The court misses some important points here, indeed. First, if people are paying levies for unauthorized downloads, society will perceive their actions to be justified. Second, people mainly use phones, computers and portable devices for music and films. Hardly anyone uses blank media any more. Therefore, levies on CD’s, for example, miss the objective. Third, if a levy is imposed, we get into the sticky situation where actual losses from downloading unauthorized content needs to be determined, which is a seemingly impossible task. Finally, the Court may not have been informed about this, but there’s been a fierce quarrel on the amount charged for levies at the EU level, which has raged on for the past 15 to 20 years. Recently a mediator had to be hired to find a way out of this mess.

Apart from total confusion about the copyright system and how it should be applied to the internet, the Court may have also chosen to sidestep the current and hostile politicized debate in the Netherlands, which was met with opposition from many sectors of society. The Court has not given a conclusive ruling in this debate, so now the European Court may rule on whether the Dutch construction is legal. Expect an update in a few years time!

Permalink | Comments | Email This Story

Dutch Phone Book Publisher Uses Trademark Bullying In Attempt To Shut Down Critic

Tim Cushing — Thu, 20 Sep 2012 14:20:54 PDT

Mike recently discussed the ridiculous assertion that copyright can't be used for censorship, despite the fact that it has clearly been used to do exactly that multiple times. And it's not just copyright being waved around by IP thugs like a Louisville Slugger with a © on the sweet spot. Claims of trademark infringement have been used as a handy beating implement in attempts to silence criticism (like "[x] company sucks" sites) or keep a competitor from detailing the superiority of its product.

Fortunately, infringement claims like these rarely succeed in doing anything more than driving more eyeballs to the offending content. Another attempt to "swing for the fences" with the trademark bat has resulted in the plaintiff hitting itself squarely in the face, this time over in the Netherlands. This particular self-beating revolves around a relic from days past know as "The Phone Book."

Much like in the US, everyone in the Netherlands receives a phone book whether they want one or not. (Fortunately, it looks like the Dutch only receive one, unlike many metro areas, where two or three phone books [minimum] are crammed into mailboxes or dumped unceremoniously on doorsteps every year. And it's not just a "big city" problem. I live in a town of 1,300 and I get three [3][!] phone books every year.) You can opt out, but the phone book publisher would very much rather you didn't. 24oranges has more details on one man's fight against the wishes of the dying [via Overlawyered]:

To help stop this form of harassment, a guy called Alexander Klöpping has registered a URL called sterftelefoongidssterf.nl(diephonebookdie) which redirects to the phone book cancellation form. In other words, if you want the phone book to be eliminated (‘die’) from your life, follow that link.

Or don't follow it. 24oranges points out that De Telefoongids has been known to ignore cancellation requests. Also this: the URL is no longer live. (Thanks to Google Cache, you can still enjoy the heady rush of a URL redirect. WHEE!!!)

And that's all Klöpping's URL did: redirect users to the cancellation form on De Telefoongids' website. Apparently, using "telefoongid" in the URL was somehow a "trademark violation" and Klöpping was ordered to cease and desist. Klöpping wasn't having it:

Klöpping replied that he will take the URL offline as soon as the dead tree merchant stops shoving the equivalent of “months of advertising leaflets”, and “half a percent of all paper used in the Netherlands” through everybody’s mailboxes, including those of people that have indicated they want to receive no advertisements through the legally binding “ja-nee” and “nee-nee” stickers (yes-no and no-no).

When the continued success of your business relies on ignoring "legally binding stickers," perhaps it's time to reconsider your distribution plan. Selling advertising space in redundant stack of paper is tough, but ignoring both stickers and your own webform is only going to get you dragged into court, rather than the other way around.

It didn't take long for De Telefoongid's bullying tactics to turn into self-inflicted wounds. Within 24 hours of the public dustup, the Dutch parliament called for making the phone book opt-in, something that should be implemented worldwide. Of course, some people still use the phone book and by all means, they should still receive one. Until opt-in becomes the norm, the rest of us can continue to use them as paperweights, booster seats, kindling and conversation starters to aid in engaging our sullen teens and tweens.

Permalink | Comments | Email This Story

Dutch Court Says Linking Can Be A Form of Copyright Infringement

Mike Masnick — Fri, 14 Sep 2012 07:59:00 PDT

A somewhat troubling ruling has come out of a court in the Netherlands, where it has found that linking to infringing content could be infringing itself, if certain conditions are met (which they were in this case). The key part here was that the site that was sued was linking to material first, and thus revealing it to the world... even though it does not appear that the site in question uploaded or hosted the content. This is troubling for a variety of reasons which we'll get to, but first the background of the case.

A Dutch television presenter, Britt Dekker, did a nude photoshoot for Playboy, and a bunch of the images leaked ahead of the December, 2011 release of the magazine. A website called GeenStijl.nl had a story about it, and included a link to a zip file that contained all the images that had been uploaded to the cyberlocker FileFactory.com. Playboy had the file taken down from FileFactory, and GeenStijl linked again to the same images on Imageshack. And from there a game of whac-a-mole followed with Playboy having the images taken down, but the images quickly spread all over the place. For what it's worth, at the time, there was a lot of speculation that Playboy itself had leaked the images to build up buzz.

Either way, GeenStijl got sued for copyright infringement -- and they responded by pointing out that they just linked to the content. The court put forth a three pronged test, and found that GeenStijl, even with just links, met the criteria for infringement. As explained on the FutureOfCopyright site (linked above):

The court considered if the publishing of the hyperlinks by GeenStijl.nl constituted a publication (Dutch: ‘openbaarmaking’) as defined in article 12 of the Dutch Copyright Act. In principle, placing a hyperlink on a website is not a publication, unless three criteria are met: there must be an intervention, a new audience and profit.

Intervention: The leaked pictures of Britt Dekker were stored on FileFactory.com, a cloud service to store files and share them with others. However, these files can’t be found through search engines, only users with the exact URL have access to the files. The URL to the file with the leaked pictures was publicly unknown, until GeenStijl.nl made it available to its large audience by publishing an article about it, the court says. Therefore, the actions of GeenStijl.nl are an intervention, according to the court. Without this intervention, the public wouldn’t have had access to the pictures before their official publication in Playboy.
New audience: According to the court, there wasn’t an audience for the pictures before GeenStijl.nl published its article.
Profit: By publishing the URL to the pictures, GeenStijl.nl had the unmistakable intention to attract more visitors, the court states. With success: in 2011, the article about Dekker was the best viewed topic on GeenStijl.nl, according to the statistics.

By my reading, all three of the prongs of the test, as presented here, are somewhat problematic. The reasoning on the first prong -- intervention -- just doesn't seem right. The claim that "the public wouldn't have had access" but for the link on GeenStijl isn't true. They did have access since the files were already on the cyberlocker. GeenStijl perhaps made it a lot more widely known, but at this point you're arguing about whether or not it's legal to make a factual statement. Did the photos exist on a cyberlocker? Yes. Saying so shouldn't be infringing.

The second prong really just seems like a repeat of the first prong. The entire argument that seems to have convinced the court is that GeenStijl was the first to link to the content. Under US law you face much more liability for leaking "pre-release" material, so you could argue that this is a similar situation in the Netherlands, but again, it's not GeenStijl "leaking" the material. They're acting as a journalist, telling people such content exists.

The final prong is completely useless. Basically it seems to say that because the article was popular, that's evidence for infringement. I can't see how that makes any sense at all. If GeenStijl was, for example, selling access to the images, then there's a much stronger argument of "profit." But just saying that because the site got a lot of traffic, they profited seems like a dangerous precedent.

The Future of Copyright article mentions the cases against FTD as being similar, but I'm not sure that's true. While a lower court had found FTD guilty for linking, on appeal it was said that links weren't the problem, it was the promoting of uploads that got FTD in trouble.

Either way, it's of little surprise that Tim Kuik, the head of the Dutch anti-piracy group BREIN, is cheering on this ruling, suggesting that this case will be useful in other efforts to go after sites that link to infringing content. Of course, given the specific nature of the ruling, including how much of it seemed to rely on the fact that GeenStijl was the first to somehow create an audience for these images, I do wonder if it really has that much value for BREIN in those types of cases. Similarly, it may be a bit exaggerated to claim -- as GeenStijl did in response to the ruling -- that the ruling outlaws Google. Again, the ruling does appear to be highly fact-specific.

It is a troubling ruling for a number of reasons. Merely setting up the precedent that a link itself is infringement has all sorts of problematic implications. But the highly specific details associated with the ruling, especially the reliance on being the first to publish the link, at least suggests that this has limited value as a wider precedent.

Permalink | Comments | Email This Story

Anti-Piracy Song Pirated By Anti-Piracy Group; Collection Society Fined For Failing To Get Royalties

Mike Masnick — Wed, 18 Jul 2012 07:18:48 PDT

Well, this is confusing. A few months ago, we wrote about how a composer, Melchior Rietveldt, was in a weird situation in which the song he wrote for a Dutch anti-piracy effort was showing up on DVD anti-piracy ads -- even though his contract quite specifically limited the use of the work to a local film festival. When he discovered that his song was all over some top selling DVDs (including Harry Potter) he sought compensation, going to local music collection society Buma/Stemra, asking them to get the $1.3 million he believed he was owed. Buma/Stemra initially ignored him, and then there was a weird situation in which a Buma/Stemra board member tried to offer to "help" Rietveldt, with some questionable conditions attached, including getting a cut of the money owed.

Apparently, the latest in the case is that Buma/Stemra has now been told to pay Rietveldt €20,000 and attorneys' fees -- and to continue its efforts to get him the royalties actually owed. And yes, this seems a bit confusing. Remember, it was the anti-piracy group and the movie studios who appeared to violate his copyright (yes, on his anti-piracy song). Buma/Strema's job was supposed to be to collect the money. So how is it that they're now the ones being fined? It appears some of it becomes a contractual issue in which Buma/Strema promised to try to collect the fees owed, but apparently didn't do enough after it decided it would be too much work to actually track down those who used the song. The judge in the case noted that, at the very least, Buma/Strema had a duty to inform Rietveldt that it had given up after promising otherwise. Either way, the end result is that the collection society now owes Rietveldt more money and has to continue trying to collect even more. All over an anti-piracy song that was pirated by anti-piracy groups (mainly NVPI, who is apparently the parent group for the well-known anti-piracy organization BREIN).

Permalink | Comments | Email This Story

Dutch ISP Shows That BitTorrent Traffic Increased After Pirate Bay Ban

Mike Masnick — Fri, 6 Jul 2012 15:55:00 PDT

We've pointed out over and over and over again that enforcement techniques like issuing bans on certain websites don't really work. And yet, the industry keeps insisting that's the path it has to take. When I met Tim Kuik from BREIN (the Dutch anti-piracy group) back in April, he insisted that my characterization of his organization trying to stuff the genie back into the bottle was inaccurate. And yet, BREIN has been on an aggressive run to try to force ISPs to block access to The Pirate Bay. After a series of court rulings, the ISPs had no choice but to comply. Now, one of them, XS4All has published a report noting that BitTorrent traffic on its network appeared to increase following the blockade of The Pirate Bay, rather than the other way around. According to the summary at TorrentFreak, the ISP thinks that perhaps all of the attention paid to this issue, because of the trial, has helped drive more interest in unauthorized file sharing:

“I think that the increase is a result of all the media attention for the lawsuit and the blockade. Perhaps people who until then had never downloaded thought ‘I hear so much about downloading music and movies, let me try it!’.”

Permalink | Comments | Email This Story

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

Mike Masnick — Mon, 4 Jun 2012 15:31:00 PDT

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.

Permalink | Comments | Email This Story

Netherlands Pre-Warns EU Parliament That It Will Not Accept ACTA

Mike Masnick — Wed, 30 May 2012 00:32:00 PDT

With critical votes in the EU Parliament on ACTA quickly approaching, the Dutch House of Representatives decided to take a pre-emptive strike, and unanimously accept a motion that urged the Cabinet to reject ACTA, while also rejecting "any future treaty that may harm a free and open Internet." Of course, this is the same Netherlands whose courts are currently censoring a local political party for setting up an internet proxy, so it appears there's at least some confusion in that country. Either way, it's nice to see this pre-emptive strike, though it's not clear how much power the Dutch government would have to reject ACTA if the EU Parliament accepted it...

Permalink | Comments | Email This Story

Dutch Judge's Anti-Piracy Activities Draw Accusations Of Corruption In Pirate Bay Censorship

Mike Masnick — Tue, 15 May 2012 13:55:00 PDT

We were a bit surprised last week to hear that a court in the Netherlands had ruled that the Dutch Pirate Party had to censor itself, when it came to explaining to people how to use proxies to get around The Pirate Bay block. At some point such censorship needs to be seen as a fundamental violation of human rights. If you are going to block a website, that's one thing. But blocking a political party from demonstrating the ridiculousness of such a block by ordering them not to talk about it? You're just asking for trouble.

However, we should have remembered that we've seen this kind of thing in the past in the Netherlands. A couple years ago, a court blocked the usenet community site FTD. FTD did not host any infringing content. It did not offer torrents of any infringing content. It was simply a community offering that some people used to post information on where you could find infringement. And for that, it was blocked. And yet... some people noticed at the time that the judge in that case taught "anti-piracy" classes, where the person running the events was the lawyer representing the entertainment industry in that same case.

Guess what? Turns out the judge in this case was that exact same judge, leading Pirate Party founder Rick Falkvinge to accuse him of beiing "not only corrupt, but textbook corrupt." Don't they have conflict of interest rules in the Netherlands?

Permalink | Comments | Email This Story

MPAA: Censorship Is Good For Consumers

Mike Masnick — Mon, 14 May 2012 08:15:00 PDT

Ah, the MPAA. Hardly a day goes by when someone there doesn't say something positively ridiculous. The latest is a reaction to the news that a court in the Netherlands has expanded the censorship of The Pirate Bay to a few more ISPs. The MPAA has decided to explain that this kind of censorship is good for consumers:

The UK ruling and indeed other recent ones in Austria, Belgium, Denmark and Finland as well as this one are positive developments that support not only the creative community but also consumers.

It's not entirely clear why they say "the UK ruling," since the post only refers to a ruling from The Netherlands, but it's a strange world when someone is claiming that censoring a website that consumers find useful is "good for consumers." So how do they defend such a ridiculous claim? Well, by getting the story backwards yet again:

The number of sites that offer legitimate creative content continues to increase dramatically. But to fully enable this growing sector to thrive and provide consumers with content when they want it, where they want it and how they want it, it is imperative that the content not be siphoned off and distributed illegally by those seeking to profit from the work and creativity of others.

Hogwash. First of all, if the industry had its way, it would never have to innovate online at all, preferring greatly to live off of the old system of DVDs with crippling DRM. The only reason they were pushed to start innovating online was because of competition from the likes of The Pirate Bay, which finally caused them to agree to license platforms like Netflix, which has shown that it's actually quite easy to compete with The Pirate Bay if the MPAA and its studios would stop demanding ridiculous restrictions on content (and insanely high prices). Offer a good service at a good price, and The Pirate Bay simply can't compete.

The claim that for such services to thrive the content can't be "siphoned off and distributed illegally" is again totally bogus. Netflix competes quite nicely in the US with The Pirate Bay, and if the studios allowed more Netflixes to exist (rather than locking down every competitor with stupid rules like only having 24 hours to watch a movie) there would be plenty of innovation. Furthermore, even if they block The Pirate Bay, it doesn't stop the fact that the content still is and will be available. Claiming that legitimate sites can't compete if there is unauthorized content available means that legitimate sites can't compete at all. Yet we see them compete successfully with unauthorized content all the time.

So why does the MPAA lie?

As always, it's about control. They don't like being pressured by such innovation. They don't like having to adapt and to change. So they attack any new form of innovation and brand it as piracy -- just as they did with the VCR. Of course, amusingly, it's now that same home movie revenue which they fear losing. Yet if the MPAA had had its way 30 years ago, there would be no home movie market from which to lose revenue. Because, just a few short decades ago, the MPAA insisted that such a market would kill Hollywood.

Oh, and as for this point:

The court verdict found that The Pirate Bay is predominantly devoted to illegal activities with more than 90% of all content infringing on copyright.

You know what else had more than 90% infringement in the early days? The VCR. But thankfully courts recognized that it also had substantial non-infringing uses -- as does The Pirate Bay. It's not difficult to see how the industry could have embraced sites like The Pirate Bay to their own advantage, but failing that and having them censored... and then insisting that somehow benefits the public? Sorry, the public isn't going to buy that kind of crap.

Permalink | Comments | Email This Story

Court Goes Censorship Crazy Against Dutch Pirate Party

Mike Masnick — Fri, 11 May 2012 15:02:00 PDT

We've been covering the attempts by Dutch anti-piracy operator BREIN to play a legal game of whac-a-mole to block The Pirate Bay by forcing ISPs to block access, then blocking proxies that provide access, and now blocking anyone from even talking about ways to get to The Pirate Bay. Bizarrely, a court in The Hague has agreed, and has come out in favor of blocking the Dutch Pirate Party from even discussing some of this stuff:

The Court specifically ruled that the Party’s reverse proxy has to remain offline. It was further ordered that Pirate Bay domains and IP-addresses have to be filtered from the Pirate Party’s generic proxy. In addition the Pirate Party can’t link to other websites that allow the public to bypass the blockade. These orders are only valid when paired with an encouragement to circumvent.

Basically, telling people how to get around a block, even if it's linking to a general proxy (not a specific one) is now barred in the Netherlands. The fact that the court now is telling proxies how they can work is a huge overreach. That seems like a pretty blatant restriction on free speech. The thing is, do the folks at BREIN actually think this charade is effective? All it seems to be doing is enraging tons of people in the Netherlands, and doing absolutely nothing to stop them from going to The Pirate Bay.

Permalink | Comments | Email This Story

Ubuntu's Mark Shuttleworth Predicts That Countries Who Limit Patents Will Have More Innovation

Mike Masnick — Thu, 10 May 2012 12:36:00 PDT

The BBC has an interesting article about Mark Shuttleworth and Ubuntu, and some of the innovations Canonical is working on. There's some good stuff in there, but what caught my attention was the bit at the end about patents:

"We know that we are sort of dancing naked through a minefield and there are much bigger institutions driving tanks through," Mr Shuttleworth says.

"It's basically impossible to ship any kind of working software without potentially trampling on some patent somewhere in the world, and it's completely impossible to do anything to prevent that.

"The patents system is being used to slow down a lot of healthy competition and that's a real problem. I think that the countries that have essentially figured that out and put hard limits on what you can patent will in fact do better."

Of course, this is the exact opposite of what the patent system is supposed to do -- but pretty much everyone who's actually innovating these days seems to recognize the same thing. What amazes me is that we haven't seen more of what Mark hints at towards the very end: countries providing explicit safe havens around patents. We have examples of this in the past -- perhaps most famously, the Netherlands and Switzerland in the latter half of the 19th century. The Netherlands dumped patents entirely, while the Swiss limited what was patentable massively (to the point that very little was considered patentable at all). And both countries saw economic growth as a result -- where industry and innovation flocked to both countries because they weren't being held back by patent disputes.

It does seem that perhaps some folks in the Netherlands remember this. There's an ongoing effort called the Appsterdam Foundation (in Amsterdam, of course), where part of the goal is to help protect app makers from crazy patent lawsuits. But I'm waiting for even more recognition from countries that this is a real growth opportunity. Assuming that countries have the nerves to withstand having the US taunt them each year with placement on the Special 301 list, there's a real opportunity for a developed nation to have innovation show up in droves by massively limiting patents.

Permalink | Comments | Email This Story

Dutch Research Reveals Wide Scope For Copyright Flexibilities In EU Laws

Glyn Moody — Wed, 29 Feb 2012 00:09:37 PST

A couple of weeks ago, Techdirt wrote about a surprising initiative by the Netherlands to introduce new flexibilities into its copyright law. Given that leadership from the Dutch government, it's probably no surprise that a few days later, the Dutch Parliament also showed itself in the political vanguard by voting not to ratify ACTA for the time being.

The full text of the Dutch minister's speech is now available, and it's well worth reading for its clear analysis of the problem facing European copyright, and its suggested solution:

The big question, however, is whether copyright law currently provides enough opportunities to allow an effective response to these technological changes and other developments in the future. In my view, this is particularly relevant in the case of the closed list of exceptions to copyright in the European Information Society Directive. These exceptions are designed to allow new products and services to be developed through creative or transformative use of copyrighted work. They also allow copyright to be restricted in the case of work used for educational purposes, in academic research or in news reporting, as well as work used for libraries and archives.

As the minister mentioned in his talk, those exceptions are explored in some depth in a report by Professors Hugenholtz and Senftleben, entitled 'Fair Use in Europe. In Search of Flexibilities.' The conclusion gives an idea of just how much scope there is within existing European law to introduce a wide range of copyright exceptions: As our analysis has demonstrated, the EU copyright acquis [body of law] leaves considerably more room for flexibilities than its closed list of permitted limitations and exceptions prima facie suggests. In the first place, the enumerated provisions are in many cases categorically worded prototypes rather than precisely circumscribed exceptions, thus leaving the Member States broad margins of implementation, as is confirmed by actual legislative practice in various Member States. In the second place, the EU acquis leaves ample unregulated space with regard to the right of adaptation that has so far remained largely unharmonized.

A Member State desiring to take full advantage of all policy space available under the Information Society Directive, and thus maximize flexibilities available at the EU level, might achieve this by literal transposition of the Directive’s entire catalogue of exception prototypes into national law. In combination with the [Information Society Directive's] three-step test, this would effectively lead to a semi-open norm almost as flexible as the fair use rule of the United States. For less ambitious Member States seeking to enhance flexibility while keeping its existing structure of limitations and exceptions largely intact, we recommend exploring the policy space left by distinct exception prototypes.
The ability to add all kinds of flexibilities to copyright law without breaching the Information Society Directive is clearly a real boon for EU governments who want to update their legislation for the digital age. But there is another notable advantage to taking this approach, as the authors note: Member States aspiring to introduce flexible copyright norms are advised to take advantage of the policy space that presently exists in EU law, and not wait until initiatives to introduce flexibilities at the EU level materialize -- a process that could easily take ten years. In this way, national models can be developed and tested in practice that may serve as a basis for more flexible future law making at EU level.
The hope there seems to be that forward-thinking countries like the Netherlands might be able to set an example for Europe's future copyright legislation, and move it towards greater flexibility. A good place to start in that respect would be for the European Parliament to emulate the Dutch politicians and to ditch ACTA, one of whose pernicious effects is to limit the freedom of signatories to modify their own national copyright laws.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Permalink | Comments | Email This Story

Dutch Economics Minister Says ACTA Is Designed To Shut Down Child Porn Sites... Even Though That's Not True

Mike Masnick — Tue, 21 Feb 2012 13:59:00 PST

If you've been paying attention lately, you've probably heard SOPA/PIPA/ACTA supporters insisting that anyone against those bills is involved in a misinformation campaign. This seems pretty ridiculous, considering the level of misinformation that has been spewed for decades in support of these kinds of laws. But it's reaching a new level of crazy over in the Netherlands, where the Dutch Econimics Minister Maxime Verhagen has apparently announced that "ordinary" people have nothing to worry about concerning ACTA because its focus is to take down child porn sites. Talk about misinformation. ACTA is about intellectual property infringement and has nothing to do with child porn.

Because the Google translation was weird, I asked a native Dutch speaker to confirm the original translation, and, though he provided a bit more context, he confirmed the basic statement. Apparently Verhagen brings up child porn not once, not twice, but three times in the course of the interview. Sometimes it's just to provide an analogy, about how blocking internet sites is okay if it's child porn, so there's no problem if it's also done under ACTA, but that's a totally separate issue because child porn and infringement are extremely different situations. But on the third mention, as the article suggests, Verhagen does, in fact, link ACTA to child porn:

"Regarding internet users that download - this treaty doesn't cover that at all. It's about, for instance, the possibility to shut down a child pornography site (not the person who goes there, but the person who puts it online). Or when there's big-scale commercial abuse in such a way that the labor of the creator is taken away from him"

I recognize that he's saying the purpose of ACTA is to go after sites not users, but that really is besides the point. People are concerned about the wrongful censorship of sites, and ACTA itself has nothing to do with child porn. Using that and claiming that's what ACTA is about is simply fear mongering. Of course, it's become all too typical these days to wrap other forms of legislation in "child porn" claims. This comic from over a decade ago remains all too true, as we're seeing with politicians around the glob using child porn to press for draconian legal changes.

Permalink | Comments | Email This Story

Dutch Government: Make European Copyright Exceptions More Flexible

Glyn Moody — Mon, 13 Feb 2012 15:39:16 PST

Well, here's a turn-up for the books. At a time when the European Commission is insisting that the copyright ratchet should be tightened up a few notches by bringing in ACTA, with its perilously vague terms that potentially criminalize even low-level acts of online sharing, here's the Dutch government planning to go in the opposite direction:

The Dutch government wants to change copyright law so new media users can continue to do "creative remixes" of protected content. [It] will no longer wait for the European Commission to find a compromise.

The Dutch government made that clear at a conference it had organized, entitled "Towards Flexible Copyright," where one of the speakers was Bernt Hugenholtz of the Dutch state committee on copyright law. On the subject of YouTube, he said: "Many of the videos we find there are creative remixes of material protected under copyright. They're mostly for laughs or political commentary, or they're simply absurd. If we applied the law today strictly, we would not be allowed to do these things."
Also speaking at the conference, Netherland's Deputy Justice Minister Fred Teeven said he was exploring "a more flexible system of copyright exceptions that would also work in a European context." One solution would be to replace the limited set of European exceptions to copyright, which are laid down by law and allow no flexibility, with a system more akin to US fair use, which gives courts a certain leeway to determine what exactly is permissible.

Of course, that's an eminently sensible thing to do, not least because it wouldn't require a radical overhaul of European copyright, just some tinkering at the edges. Despite that, the idea is likely to meet stiff resistance -- and not just from the industry dinosaurs that reflexively resist any change that might reverse the copyright ratchet by even a few degrees.

At a time when the European Commission is hell-bent on getting ACTA ratified by the European Parliament, it won't take kindly to national governments going their own way on exceptions. That's particularly the case since the Commission is also drafting a new directive specifically designed to harmonize EU copyright law.

The Dutch government will be well aware of all those countervailing pressures, which makes this unexpected move all the more bold. Let's hope it inspires other EU countries to lend their weight to this much-needed initiative to make European copyright laws fit for the digital age.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Permalink | Comments | Email This Story

Dutch ISPs Refuse To Block The Pirate Bay Without A Direct Order

Mike Masnick — Wed, 1 Feb 2012 05:33:34 PST

While some Dutch ISPs have been ordered by a court to block access to The Pirate Bay (after fighting it in court for years), the order only applied directly to two ISPs: xs4all and Ziggo. BREIN, the local anti-piracy group, had then demanded that other ISPs also start blocking access. However, it appears that KPN and T-Mobile are refusing, saying that they will not do so without a direct court order:

“KPN sees the blocking of websites as a drastic measure for which a court order is required,” KPN said in a statement, adding that innovation is needed to curb piracy.

“KPN doesn’t believe a blockade is the right solution. What is needed are robust, attractive business models that are easy to use and offer a fair deal to both producers and consumers of content.”

T-Mobile also said that it will only respond to court orders, while it emphasized the value of an open Internet.

“T-Mobile strongly supports an open Internet and is fundamentally against shutting off access to websites. Dutch law is very clear when it comes to blocking access to the Internet. T-Mobile will only respond to a court ruling, not to demands from a private party such as BREIN.”

It's good to see that these ISPs are standing up for the right to an open internet. Of course, I do wonder how such block orders work under Netherlands' (first of its kind) net neutrality law.

In the meantime, the two ISPs who were subject to the court order have begun the blockade, with Ziggo pointing users to an information page... in which they tell users that it's easy to get around the blockade.

Permalink | Comments | Email This Story

Dutch ISPs Told To Block The Pirate Bay

Mike Masnick — Wed, 11 Jan 2012 15:44:41 PST

For a few years now, some Dutch ISPs have been fighting a court order that demanded they block the Pirate Bay, trying to appeal to basic common sense of not making a third party liable:

"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."

Unfortunately, it appears the Dutch courts have no time for common sense, as they've rejected this argument (in Dutch) and given ISPs 10 days to figure out how to block sites or face huge fines (10,000 euros per day, and potentially a total of 250,000 euros).

Of course, we've seen this game before. Multiple times. Some technologically clueless court orders a block... and within a very short period of time (sometimes before the blocking even begins) services start springing up to get around the block. This leads to some free advertising for the site, but no apparent decrease in infringement.

Permalink | Comments | Email This Story

Dutch Collection Society Found To Be Source Of Infringing Content

Bas Grasmayer — Tue, 13 Dec 2011 06:46:26 PST

Remember the story about the composer who found his music featured in anti-piracy ads and had a difficult time getting paid out, triggering a corruption scandal at collection society Buma/Stemra? It was obviously a bit ironic that the music in question was used in anti-piracy ads, but it appears the irony truck forgot to unload a package - filled to the brim with humiliation.

Using YouHaveDownload, a tool that tracks torrent transfers on various public torrent trackers and matches them with IPs, a popular Dutch weblog has uncovered piracy at that aforementioned collection society. They scanned the IP range of Buma/Stemra's HQ and among the pirated material they found:

An episode of Entourage (whois).
A copy of the game Battlefield 3 (whois).

The tool only covers about 4 to 6% of what's available on the networks it tracks, so it's possible that there's a lot more ~~sharing~~ evil piracy going on from their offices as well.

If anything, this scandal really shouldn't be a scandal. Anti-piracy lobbying and campaigning has led to sharing becoming a taboo, while the money spent could have been used to facilitate sharing and to build sustainable business models on top of that. Despite pirates among their own ranks, organizations like Buma/Stemra feel that the Dutch policy of downloading from unauthorized sources for personal use being legal should be altered (read their statement). Even though the Dutch parliament disagrees, the Dutch government is trying to get exactly such laws altered citing EU pressure, even though the Digital Agenda Commissioner, Neelie Kroes (herself Dutch), has stated opposite goals. With people in parliament who do not know "what or who is a torrent," it's not entirely unlikely that the govt actually manages to get the law changed after all.

Buma/Stemra was quick to respond and acknowledge that IPs are not reliable to determine infringers. Apparently the IP addresses used for piracy (ending in .246 and .248) cannot be used by employees to access the ~~web~~ internet, so the collection society claims they were spoofed. (Update: their, now removed (cache), statement said internet, instead of web - apologies). Oddly, the IP from which the email with the press announcement was sent, ~.247, hasn't been spoofed. Did I mention they brought up spoofing after a spokesperson first claimed that the IP addresses could have originated from anywhere in the business park even though everything from ~.240 to ~.255 is linked to Buma/Stemra's office?

Sure, this scandal is humiliating, but it's not as embarrassing as the war against innovation. You can use this moment to better understand the human nature of sharing, to understand that downloads don't translate directly to lost sales, and to rethink your lobbying strategy to push for a more sane framework. Or, you know, you can continue to upset fans whilst amusingly tumbling from one scandal into the next.

Meanwhile, it will be interesting to see if there are more pirates in disguise amongst hardline politicians, RIAA & MPAA folks, and other classic opponents of more flexible copyright legislation. You all know where to find the tool now, so perhaps it can happen through a lesson about crowdsourcing. That is, have fun and see what you can find...

Permalink | Comments | Email This Story