September 11 2008
Stichting BREIN is a Dutch not-for-profit foundation that combats piracy on behalf of authors, performing artists, publishers, producers and distributors of music, film, video and interactive software. BREIN investigates both online and offline violations and, where necessary, takes civil action on behalf of the entertainment industry.
Leaseweb was the hosting provider of the website www.everlasting.nu, which distributed a large number of files including films, music, computer games, software applications and e-books without the permission of the relevant rights holders.
BREIN instituted interim injunction proceedings against Leaseweb. Leaseweb had refused to make the website inaccessible to the public and to disclose to BREIN the contact details of the website owner. As a counterclaim, Leaseweb demanded that BREIN be prohibited from serving any additional summons containing such requests. The district court ruled in favour of BREIN and rejected Leaseweb’s counterclaim for an anti-suit injunction.
In its decision in the appeal to the interim injunction proceedings, the Amsterdam Court of Appeal held that www.everlasting.nu operated according to the BitTorrent system. BitTorrent communities allow the public to exchange files, in which respect the website itself functions as a server. The court held that the website deliberately facilitated grand-scale infringement of the copyrights of the relevant parties in the entertainment industry.
The court subsequently considered the failure to disclose the website owner's contact details, deciding that BREIN’s interest in disclosure was extensive and more important than the interest of the website owner to prevent his identity from being revealed. BREIN had made a prima facie case that there was no other way to obtain the contact details of the website owner other than through the hosting provider Leaseweb. Moreover, the court held that BREIN had sufficiently drawn Leaseweb’s attention to the fact that it was hosting a website that was used to perform infringing acts, and that by not providing the website owner’s details, Leaseweb was itself performing an unlawful act.
Although the court ruled in favour of BREIN, it nevertheless held that an order for payment of all costs of the proceedings was unwarranted. Given that Leaseweb clearly had no self-interest in weighing the balance between BREIN’s interest and that of the website owner and the underlying legal matter is still to be decided, the court held that it would be unfair to order Leaseweb to pay all of BREIN’s costs for the proceedings.
The decision shows that following the European Court of Justice ruling in Promusicae v Telefónica de España (ECJ January 29 2008, C-275/06), national courts may weigh the balance between the interests of IP owners and the privacy of subscribers in favour of IP owners.
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Diederik E Stols