posted by Thom Holwerda on Fri 15th May 2009 09:30 UTC
IconWith things like the Pirate Bay trial and the French three strikes law still very fresh in memory, it's easy to forget that sometimes, offence can be the best defence. In light of this ancient wisdom, Dutch website FTD.nu has filed a lawsuit against the Dutch variant of the RIAA, BREIN. FTD.nu is backed and supported by two key Dutch copyright lawyers. Note that most links in this story will be written in Foreign for most of you.


Dutch copyright laws

Since most of you probably aren't Dutch, this story requires a little bit of background on Dutch laws regarding downloading on the internet. You see, The Netherlands is in a fairly unique position compared to the rest of the world: in this small country I call home, downloading copyrighted content off P2P networks, BitTorrent, or newsgroups is decidedly not against the law.

You see, there's a "home copy" article in our copyright laws that is actually quite clear on the matter. The gist is that you may create and own copies of copyrighted content for your own home (provided you don't share these copies). The law is quite clear in that you do not even have to own the original work.

The end result is that while uploading copyrighted content is a breach of copyright laws, downloading is not. This is not just some random interpretation of the law - our Ministry of Justice has given out numerous statements over the years that there is no such thing as "illegal downloading" in The Netherlands - and that this is the intention of the law. To further cement this, our Secretary of Justice has even stated as such several times in the Lower House.


Why a lawsuit?

If this is all so clear and cut, why the need for a lawsuit? The problem is that BREIN, more or less our variant of the RIAA, acts as if downloading of copyrighted content such as music and films is illegal - even though it quite clearly is not. BREIN does all the annoying things the RIAA does: notices about how downloading is stealing, anti-piracy campaigns, legal threats, you name it.

FTD.nu is one of those websites who received such legal threats. FTD.nu is a website where users can post messages on where to find items in newsgroups. FTD.nu itself does not host content, it's just a glorified message board with notices on where to find items in newsgroups.

When FTD.nu received its first set of legal threats from BREIN, they adapted their system voluntarily (without legal action). Still, BREIN continued to pressure the website, and now FTD.nu has had enough: they have sued BREIN in what is known in The Netherlands as a "bottom procedure" (bodemprocedure): a bottom procedure's outcome is final, contrary to that of the more common "short procedure" where a case is handled quickly, and priority is given to the direct interests of the parties involved - however, the outcome of a "short procedure" is provisional. A bottom procedure is a lengthy one, but is obviously a better fit for a case like this.

FTD.nu is backed by two key lawyers and experts on copyright and the internet, one of which is Arnoud Engelfriet, whom we already know because he advised us when it came to The Netherlands and EULAs. Engelfriet has long pointed out BREIN's hypocrisy, and is now the one who wrote the actual summons in this particular case (together with Gijsbert Brunt).

FTD.nu demand several things from the judge, things that should settle the case once and for all. They ask that the courts:

  1. state once and for all that downloading of copyrighted content is legal in The Netherlands, even if the upload was illegal.
  2. state that pointing users to spotted content online (like material in newsgroups) is legal, even when put there in an illegal manner.
  3. state that FTD.nu is not breaking the law by doing so.
  4. state that FTD.nu does not have to screen said tips.
  5. state that FTD.nu does not have to remove any such tips, unless BREIN files a rightful complaint about a specific tip (probably approved by a judge).

In addition, they also demand that BREIN places a rectification on their website for at least three months in which they retract the statement "what FTD.nu is doing is undeniably against the law", a statement made earlier this year during an interview in one of the biggest Dutch newspapers.

I can't begin to express my joy about these recent developments. Since this is a bottom procedure, it could last anywhere between 12 and 18 months. Still, it should give a definitive outcome, and seeing the clarity of the law, the consensus about this matter among lawyers, and the statements from the Ministry/Secretary of Justice, it's hard to imagine this case being anything but a crushing defeat for BREIN.

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