With 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:
- state once and for all that downloading of copyrighted content is legal in The Netherlands, even if the upload was illegal.
- state that pointing users to spotted content online (like material in newsgroups) is legal, even when put there in an illegal manner.
- state that FTD.nu is not breaking the law by doing so.
- state that FTD.nu does not have to screen said tips.
- 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.
Your confidence is great. Win this case first, then roll out the party. The music industry has a lot of tricks up in the sleeves and a lot of money to make use of these tricks.
That said, it’s great to see a country not criminalizing their inhabitants.
I think Finland had a similar law before the EU came up with a directive that was a “mandatory” for every EU country to implement in their laws. Of course we did just that, but it doesn’t surprise me that after all not everyone needs to do the same…
Actually, the way laws work in the EU is by a member country proposing a law to the EU parliament. The MEPs then discuss, pass recommendations back to the national governments and then it goes round…until…a compromise is reached between all EU members and then the directive is passed.
Then, each national government votes on the directive and decided whether it passes into national law. Generally it does, thence it becomes part of EU law.
Basically the EU does not have the powers to force its laws on member states. It is the member states themselves that agree to the EU-wide law they proposed in the first place.
Norway also had a similar law, but i think it too has changed now. Don’t know if it was due to EU regulations that even though we have chosen to stay out of the EU, we are forced to implement.
A fun thing though is that i today read that it is not entirely unrealistic that the pirate party will get one of Swedens seats in the EU parliament in the upcoming election next week. Their popularity has soared lately.
There is a lot happening around the world right now WRT p[riv|ir]acy on the internet, it will be interesting to see how it all pans out. Maybe in 10 years we will be looking back on the 2000’s as the ‘Wild West’ period of the Internet.
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Off Topic: Thom, im learning dutch right now and i am looking for dutch audiobooks. Just finished de brief voor de koning, which had spot on ‘advancedness’ of the language. Got any other similar classics to recommend?
(Learning dutch is a breeze when you know Norwegian, English and German
Edited 2009-05-16 01:16 UTC
You could try the audio book of “Kruistocht in spijkerbroek”. You can get it (legal here
) from that famous site of your neighbouring country 😉
Edited 2009-05-16 12:24 UTC
Yes, same thing here in Germany. We used to have the same law (uploading illegal / downloading legal), up to the point when our government decided that this was indeed just a “legal loophole” and never really meant that way, so they closed it.
Some day I will get so fed up that I’ll have to emigrate to the Netherlands. Nederlands is ook zo een leuke taal! 🙂
All the bad things come Brussels. Well, they don’t. The EU gives countries great freedoms how they implement EU directives into national laws. National politicians who like to change laws often use the EU as a reason. But often it is false, the only result is that everyone blames Brussels.
In fact, countries can influence EU directives, and this is exactly what happened. The Netherlands has wanted to keep this article in its copyright law and as a result EU directives were designed to allow this. If Finlands wants a similar article in its copyright law, it can do so today.
—n00bfun begings—
Considering most of it is written in Dutch, one might claim it’s written in an extraterrestrial “language” :p
—n00bfun ends—
I wonder if Dutch penalty code has any provisions against the behaviour of BREIN. Constantly harassing other people for violating a law, they didn´t violate, can not possibly be legal. Not to mention the nonsense about “stealing” in a country, where the law clearly states the opposite.
Hmm.. what’s the typical rent of a 64 square meter apartment in the Netherlands?
64 sq. meters? max 500 euro a month with a waiting list of a decade.
Rural area’s can be cheaper, commercial projects in larger cities are a lot more expensive.
Yeah, “written in Foreign” kinda got me to chuckle. My first thought was: I don’t speak Foreign. Though, I do read and understand a little Japanese, Spanish, and Hebrew.
Still… common, give us English speakers a little credit: we can’t all speak Esperanto or Dutch.
While downloading might not be illegal in The Netherlands, how about sharing and uploading? You see, with Bittorrent, you have to also upload at the same time — at least with the latest versions of the app.
I know that a few more people asked you this very question on your blog a couple of times now, but you never replied.
It’s in the article, Eugenia.
EDIT: Actually, I think it needs some clarification.
Uploading is a breach of copyright. Downloading is not.
It’s actually quite logical if you think it through. Copyright law is basically an implied, standardised contract between the copyright holder and the person buying a copy from said holder. In this agreement, you are granted certain rights, and certain things are prohibited.
Among the granted rights: home copies…
Prohibited: …sharing those copies beyond your home (hence the term, “home copy”).
From this, it becomes clear why downloading is legal, but uploading is not. As a downloader, I never entered into the “implied contract”, and as such, cannot be held accountable for breaking it. The uploader, however, HAS entered into the implied contract, and therefore, CAN be held accountable.
It’s actually completely logical. It’s just that we’ve been so indoctrinated by organisations like the RIAA, MPAA, and in my case, BREIN, that we all actualy BELIEVE the nonsense they’re telling us.
General note: suffice to say, this is a DUTCH THING. The above probably DOES NOT apply to your own country.
Also note that this comment is merely the way I see it – there is probably a better way to put it. Still, fact remains that uploading is illegal, downloading is not.
Edited 2009-05-15 14:49 UTC
Hmm, ok. So I guess you got to be careful and not use Bittorrent then.
Just use a different client that will let you refuse to upload.
Yeah. Then they’d have to get a law passed to make it illegal not to upload if you download. 😉
If I understood correctly what Thom said, it is illegal to buy a copyrighted material and to upload it, because it breaks the deal you agreed to when you bought it.
If you download the file without buying it, you didn’t agree to any deal with the copyright owner. Then you would be legally allowed to upload it as well…
Anyway, all this stuff will soon be obsolete as more and more material move to freenet. The law is still far behind freenet in most countries. The only way they have to stop freenet would be to ban the internet all together.
If I understood correctly what Thom said, it is illegal to buy a copyrighted material and to upload it, because it breaks the deal you agreed to when you bought it.
If you download the file without buying it, you didn’t agree to any deal with the copyright owner. Then you would be legally allowed to upload it as well…
You’d be breaking copyright law which is a completely different thing. Sharing someone’s copyrighted work without explicit permission is a breach of that law, no matter if you have agreed to it or not.
Anyway, all this stuff will soon be obsolete as more and more material move to freenet. The law is still far behind freenet in most countries. The only way they have to stop freenet would be to ban the internet all together.
I tried that thing and well…it’ll _never_ go mainstream. It’s just awkward to use and no Joe Sixpack starts using it unless you install it for him without his knowledge.
Well, if you want to stay legal for yourself then yes, it won’t matter much in practise.
We also have a law which doesn’t allow anyone to track your IP address without prior notice. Since it is impossible to obtain someone’s postal address when you only have their IP address, this would never be a suitable form of evidence.
This means that uploading is no problem either in the Netherlands. The only messages people receive here come from US organisations. Those organisations tend to write dutch ISPs, which then forward these letters to their customers with an extra line like “We received this complaint. What are you going to do to resolve it?”. Replying with something like “This serie hasn’t been licensed in Europe.” or “Sorry, won’t share this exact file again.” and probably everything even more stupid will do. Only your own ISP will see your reply and they really don’t care about it. Many ISPs probably don’t even forward such notices.
So if you don’t upload, you only really do it for your own sake. You can’t be caught for it here.
“General note: suffice to say, this is a DUTCH THING. The above probably DOES NOT apply to your own country.”
The US law is so murky, it is not even funny. There is one thing that is clear though, that could be applied here. It is written specifically that selling a bootleg CD is illegal, purchasing it is not. It seems to be the same thing to me, just downloading is not a physical media.
While I agree with the article (being a Dutchie myself), I would have to take offense with the title, which has a ‘c’ where there should be an ‘s’.
Please fix it, it looks silly like that…
Offense: US spelling.
Offence: UK spelling.
Same for defense/defence.
Edited 2009-05-15 17:05 UTC
Please don’t ever switch to using bastardised English.
Canadian/UK spelling is where it’s at. 
There is no such thing as bastardized English. There is merely different ortographies.
FÃ¥r Ã¥rll Ajæ kaÃ¥r dhö spæleng kudd bii “diifænnz”
EDIT: Sdoopidd mii. Dhö rajædd spæleng sjudd bii “dhö” annd nÃ¥rdd “thö” .. its sÃ¥rft d andd nÃ¥rdd hard d.
Edited 2009-05-16 00:10 UTC
So, Thom, is the situation in the Netherlands that you can lawfully download a pirated copy of OSX, but that when you come to install it, you will still be bound by the Eula (if there is one still in it)
And what happens if the copy you download has had the Eula stripped out of it?
Or can you only download and have it in your possession legally, but are still not permitted to install it?
Its quite mind boggling. I agree that it is logical in a certain way, but when you start to think through the implications…. Well!
So, Thom, is the situation in the Netherlands that you can lawfully download a pirated copy of OSX, but that when you come to install it, you will still be bound by the Eula (if there is one still in it)
In most European countries EULAs are mostly invalid and won’t hold up in the court. Atleast here the EULA cannot state how or where you are allowed to use your copy, including selling your copy forward or installing it only on a machine that fulfills some certain criteria. Ie. the part of the OSX EULA which states you can only use it on Apple hardware isn’t valid, atleast here where I live. I suppose that’s true for Netherlands too.
Though, Finland differs from Netherlands in the downloading part. As far as I know it’s still illegal here to download such pirated software.
In the Netherlands, computer software and its “preparatory material” (e.g. source or object code) are exempt from the home copy law, so downloading unfree software without proper authorization would be a violation.
The same holds for electronic databases. I find it interesting that the “electronic database” argument has not been made by BREIN et al, in relation to downloading of DVD images for instance. You might argue that they possess many characteristics of an electronic database.
Exactly, software does not fall under the home copy law.
My intent is to folow this case for OSNews, and keep y’all up to date. Maybe I’ll detail the words of our Ministry/Secretary of Justice soon as well, to give some more insight.
Well, The Netherlands position isn’t such unique – for example, in Poland we have also similar laws (download legal, upload illegal). Unfortunatelly, current neoliberal government probably would try to change this :/.
The same here in the Czech republic – downloading is legal, uploading is not. And as in the Netherlands, this does not apply to software – downloading music and video is OK, downloading software that does not allow it (like free software or freeware) is not. Actually, I thought this was quite common in Europe (and possibly in Asia, too)…
And I don’t think this will change anytime soon – this is allowed by the fact that there is a “tax” for every media or a device that can be used for copying copyrighted material. That is, we pay extra money for every blank CD, DVD, USB card, printer etc. (even if we use them for copying our own material – that’s the presumption of guilt). The money then goes to the organizations that act on behalf of the artists. That’s why our copyright law explicitly says that making copies of copyrighted audio/video material for personal use is OK.
Edited 2009-05-16 04:01 UTC
Same here in Canada… downloading okay; uploading not okay. Our conservative government keeps trying to reform our copyright law to be more like the DMCA but the bills so far, keep getting shot down.
I’m surprised that in the above discussion the interesting discrepancy between this (wonderful) development compared with the very recently enacted French laws concerning measures that can be taken against those -according to French laws- illegaly downloading music.
To answer a question asked above about whether Dutch laws provide a means to sue BREIN for harassments; in case (pesonal) damages are sustained, both private and criminal law provide mechanisms to be compensated (it depends on the context which is best, but applying one field of law precludes applying the other). FTD is a user community. It will be difficult to prove any actual damages. Therefore I believe FTD is doing the right thing only claiming several strong rectifications, as this only requires a judge’s verdict on the correct interpretation of the law.
Personally I would be relieved if BREIN’s self-proclaimed authority is reduced by new case law specifying sharper boundaries than currently exist. Other than that, as Thom pointed out, persistent communication on the legality of downloading (predominantly issued by BREIN) have shaped our thinking. Right now the topic is hot, with significant media coverage on Sweden and France. I don’t believe it’s a coincidence that FTD files the lawsuit now all of this happens. Media coverage alone will help people reconsider this issue, which is a good thing.
“Offence” is supposed to be spelled “Offense”, I believe.
Why don’t you read the discussion first?