Amsterdam, 6 December 6, 2016 – The Amsterdam Court of Appeal today set aside the decision of the Amsterdam District Court in the case filed by piracy fighter Stichting BREIN in 2009 against Usenet provider News-Service Europe B.V. (NSE). This means that NSE won on appeal.
The Court of Appeal ruled that NSE had not infringed copyrights, that as an intermediary, it is not liable for the infringements made on its platform by others and that NSE did not act unlawfully. Moreover, the filter imposed on NSE by the District Court in 2011 is contrary to European legislation (Article 15 of the E-Commerce Directive 2000/31/EC). This article stipulates that an intermediary cannot be obliged to exercise general monitoring.
Patrick Schreurs, former CEO: “Finally, justice! At the end of 2011 it was clear to friend and foe that the decision of the District Court could not be upheld. Even so, Stichting BREIN did not wish to await the outcome of the appeal lodged by NSE, the result being that a successful Dutch company had to cease its activities unnecessarily. That still hurts. After the appeal proceedings dragged on for over five years, the Court of Appeal has now finally ruled that we were right all along.”
However, the Appeal Court did order NSE to implement an effective notice-and-takedown procedure (NTD procedure). Such a procedure can point out to a provider the presence of unlawful material on its platform, so that it can take action and if necessary, remove the contested material. In line with the aforementioned prohibition of general monitoring, the initiative to this procedure lies not with the provider, but with the person making the report.
The order is striking because NSE already offered an effective NTD procedure before the legal proceedings were issued. In an earlier interlocutory order, the Court of Appeal denied that NSE’s NTD procedure was not effective. Moreover, offering an effective NTD procedure is one of the conditions on which an intermediary can successfully rely for exclusion of liability (section 6:196c(4) of the Dutch Civil Code). Since the Court of Appeal ruled that NSE complied with all the conditions, it had effectively labelled NSE’s NTD procedure as sufficiently effective. The court order is apparently a mere palliative.
Wierd Bonthuis, former CFO, on the judgment: “I am very satisfied that we have won on appeal in this dispute between our company and Stichting BREIN. If this judgment had been handed down by the District Court, NSE would have had no reason to cease its business activities. That, however, became inevitable when, despite the fact that we had filed an enforcement dispute, BREIN decided to enforce the judgment and left NSE with the damage.”
About usenet providers
The role of a usenet provider is similar to that of an internet provider or an email provider. A usenet provider enables usenet users to post messages in public news groups and ensures that these messages are distributed to the entire usenet. Such neutral intermediaries offer access to a technological platform without any involvement in what is posted by users.
Stichting BREIN initiated proceedings against usenet provider News-Service Europe in 2009. BREIN was of the opinion that usenet providers independently reproduce and disclose copyright-protected works to the public, and BREIN claimed cessation of these activities by News-Service Europe. The court of first instance found in favour of BREIN and prohibited News-Service Europe from recording and making available copyright-protected works, subject to a penalty of € 50,000 a day. This order boiled down to a far-reaching, preventive, general and 100% water-tight obligation to install a filter. Because it was impossible for News-Service Europe to comply with this impracticable order, it was compelled to cease its activities as from 6.00pm on 4 November 2011. An appeal had been lodged in the meantime.
About News-Service Europe B.V.
News-Service Europe B.V. (News-Service.com) was founded in 1998 and was a successful usenet provider established in the Netherlands with an international group of customers. At the end of 2011, News-Service Europe was forced to discontinue its services. News-Service Europe gave access to usenet only to businesses, such as resellers and internet providers.