Written by Tanaqui
Dutch fansites may be criminalised if their users mention the existence of copyrighted material on the internet, even if they don’t link directly to it, despite it not being illegal to download copyrighted content in the Netherlands for personal use.
The development comes as part of a long-running battle between Dutch Usenet community FTD and Dutch anti-piracy organisation Bescherming Rechten Entertainment Industrie Nederland (BREIN).
FTD, the largest Usenet community in the Netherlands, allows its 450,000 users to create “spots” or reports indicating the file names of uploads or the names of the Usenet groups or other sites where they can be found. In June, a Dutch court ruled that by allowing users to provide sufficient details about the existence of uploads of a movie to allow other users to find them, FTD was effectively publishing the movie as if it had actually hosted the movie on its own servers. Following this ruling, BREIN asked the court to impose a fine on FTD for every day it continues to operate.
Earlier in 2010, BREIN declared FTD’s operations “illegal”, despite FTD having entered into discussions with BREIN over “spots” during 2009 and having co-operated in making some changes to its operations to ensure there was no doubt about their legality.
In response, FTD has taken BREIN to court to clear its name and prevent the fines being enforced. FTD’s case is that its users are merely pointing to content uploaded by others which, under Dutch law, they may legally download, and that directing users to online content is legal, even if the material was put there without permission of the copyright holders.
In court, BREIN has argued that the users providing “spots” are the same ones uploading the content they are posting about. (Uploading copyrighted content is illegal in the Netherlands.) FTD strongly contests BREIN’s claim and is now claiming in turn that it has identified undercover investigators hired by or directly employed by BREIN posing as FTD members who have uploaded content and posted “spots” in an attempt to provide proof for BREIN’s claims and to discredit FTD.
A ruling in the case, which could have widespread implications for Dutch providers of internet services and websites, is expected in November.