posted by Thom Holwerda on Fri 31st Jul 2009 15:46 UTC
IconYesterday, the Dutch online community was surprised by a verdict from a judge who declared that The Pirate Bay had to make itself unavailable in The Netherlands. This verdict was cast in a case the Dutch RIAA/MPAA-like organisation BREIN had started against The Pirate Bay. With it being a widely known and established fact that downloading copyrighted content off the internet - even if the upload was illegal - is not illegal in The Netherlands, where does this verdict come from? Is it truly a win for the entertainment industry, and a loss for Dutch consumers? Not really - the situation is much, much simpler than that.


BREIN vs. The Pirate Bay

We've talked about copyright in The Netherlands before, obviously because I'm Dutch myself. I've also often explained here on OSNews that there is no such thing as illegal downloading in The Netherlands, which obviously raises the question: on what grounds, then, did The Pirate Bay get banned from The Netherlands (with a fine of 30000 EUR for each day they remain open 10 days after the verdict)?

First, let's establish, once more, that downloading of copyrighted content in The Netherlands is indeed legal - even if the upload was illegal. This is the law in The Netherlands, confirmed by several knowledgeable and respected lawyers, as well as in several statement by the Secretary of Justice (who also - very importantly - explained that is the way the law is supposed to function, so it's not a loophole). There are also various court cases in which the judge confirmed this.

For years now, BREIN had been spreading misinformation about this, because they insisted downloading was illegal. Recently, they have changed their tune, and are indeed acknowledging that it is, in fact, not illegal. For instance, in this morning's Algemeen Dagblad, Tim Kuik, BREIN's director, said that "Downloading might be legal most of the time, uploading is not." It's fun to see that Dutch media outlets also finally dropped the "illegal" moniker when they are reporting about downloading.

So, if downloading is legal, why has The Pirate Bay been sentenced like this? As we all know, The Pirate Bay does not offer content - it merely points to it, in the same way Google can. Well, this is where it all gets a little bit ridiculous. The Pirate Bay has been sentenced by default [Dutch], in absence. The people behind Pirate Bay had been summoned to court by BREIN, but they did not show up, and as such, they did not defend themselves. In such a case, the judge will automatically accept all the charges made, and sentence you "by default".

This raises another question: why did they not show up? This is a very interesting question, as many wonder if the court summoning by BREIN was legal. They summoned The Pirate Bay via - you in the back, don't laugh - Twitter and Facebook, among other things. This raised a lot of eyebrows before the trial even started; is it legal to summon someone to court via Twitter and Facebook - someone from abroad? Well, the verdict states that apart from Twitter and Facebook, BREIN also sent the summons to the lawyer in the Swedish TPB case and to the TPB owners' private home addresses as known by the Swedish local government (even though they don't live there any more). The judge declared that this was enough.

Because the owners of TPB did not show up, several interesting questions remain unanswered, but for now, those questions will remain unanswered. Has TPB caused damages in The Netherlands? Is it okay to close off an entire site?

Peter Sunde of the The Pirate Bay has already announced that as soon as they find a lawyer willing to take on the case for free (they don't have the money) they will appeal the decision. If they don't, they will have to comply or pay up, as a Dutch verdict can easily be carried out in Sweden.


Conclusion

The end result of all this is that despite the gloom and doom Tweets, blog posts, and comments in The Netherlands, this verdict means absolutely nothing. TPB has been sentenced without an actual trial, by default, so the judge didn't even handle the case. It's not a legal endorsement for BREIN's position.

BREIN, probably one of the most hated organisation in The Netherlands, and its front man, Tim Kuik, of course shouted this verdict off the rooftops, declaring a major victory. However, the reality is that nothing has been gained or lost yesterday. Downloading in The Netherlands is still legal - the way it should be. Copyright exists to protect advancements in the arts and sciences - not to fill the pockets of bloodsucking leeches like BREIN and Tim Kuik.

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