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Dutch court rules Usenet provider unlawful and issues injunc

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Dutch court rules Usenet provider unlawful and issues injunc

Postby SlyckTom » Fri Sep 30, 2011 7:48 am

Dutch court rules Usenet provider unlawful and issues injunction with penalty sum

The District Court of Amsterdam Wednesday rendered verdict against the commercial Usenet provider News-service Europe (NSE). It is ordered to remove files with infringing entertainment content from its servers or pay a penalty of 50,000 euro per day. NSE was subpoenaed by the BREIN foundation that represents right holders to films, music, games, interactive software and books.

The Dutch company NSE claims to be Europe's largest Usenet Service Provider (USP). NSE offers paid access to many hundreds of thousands of entertainment files which are kept in newsgroups on its servers. This content is kept in so-called 'binaries' that contain films, television series, music, games and e-books. Consumers buy access through subscriptions from so-called 'resellers' of NSE like for example NewsXS. The best quality illegal files could be found through indexing services like FTD, similar to the English Newzbin, that have been ordered unlawful by Dutch and English courts previously. Such services basically maintain lists with referrals to illegal files on Usenet.

"The injunction against this very large Usenet provider is a groundbreaking step in the dismantling of the trade in access to illegal files on Usenet", says BREIN director Tim Kuik. "This is pulling the second leg from under the illegal part of Usenet. Previously that happened with indexers like FTD and Newzbin. The third and last leg are the resellers."

The Usenet, a worldwide platform for the exchange of messages, was used originally for short text messages. After larger works like films, music albums or games could be converted into such short text messages, Usenet as operated by commercial Usenet providers degraded into a distribution system for illegal files. The District Court of Amsterdam concludes that NSE is liable for illegal duplication, making available and tortuous behaviour. NSE is ordered to cease and desist from its infringing and tortuous acts within 4 weeks on pain of a penalty sum of 50,000 euro per day with a maximum of 1 million euro.

According to NSE its operations amount to nothing more than a mere technical platform on which it temporarily stores alpha-numerical files. It should be seen as the same as an ISP and be exempted from liability. However the District Court rules that NSE is going further than the making available of strictly physical facilities but that it is making managerial choices about the content, knows that the binary files largely contain infringing content and earns money with it through contracts with its resellers.

The court considers that not much can be expected from a Notice & Take Down procedure because illegal content is shared with other USPs before right holders can be aware it has been made available on the servers of NSE. Also NSE's argument that it would not be able to filter all binaries on unauthorized content does not impede an injunction. The court rules: "The large scale infringement on copyright protected works makes an injunction necessary, while the limitation to binaries makes the measure proportional in relation to its objective of protection of the many rights holders."

The court declares the verdict executable without suspension by appeal considering that the interest in curtailing the damages of the right holders represented by BREIN -in view of the fact that around 80 to 90% of the binaries contain illegal content- outweighs the consequences of the injunction for NSE. In order to provide NSE with the opportunity to possibly take fitting measures -like the putting in place of a filter in agreement with BREIN- the court rules that the term within which NSE must comply with the verdict is four weeks after it will have been served.

The verdict does not concern the short text articles for which Usenet was intended originally. BREIN does not aim at prohibiting Usenet but at stopping the large scale infringement on copyright that is taking place daily via the service of NSE and other commercial Usenet providers.

"NSE claims that this verdict spells the end of Usenet because they would not be able to filter illegal traffic. NSE is a large player but that is nonsense. It is possible for them to remove illegal files from their servers but it does cost money. NSE does not want to make that investment because in fact consumers pay for access to that illegal content. Without illegal content that income disappears. That does not mean the end of Usenet but it does spell the end of the illegal part of Usenet. The legal part can go on just like it did before services like NSE and their subscription sellers started to abuse it", says Kuik.
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