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(Sep 02, 2009) Mininova, a "torrent" site (one whose links allow for the transfer of large files) in the Netherlands that has been accused by an entertainment industry representative of facilitating downloading without copyright holders' consent by providing links to thousands of music tracks and movies, was ordered by the Utrecht district court to stop linking to files that have copyrighted material. The August 26, 2009, ruling was based on a suit lodged by the industry representative, the Brein Foundation. Mininova is a student-run business in Utrecht whose popular website attracts about 45 million visitors a month and now garners €1-2 million annually in advertising revenues. In the past it had offered as a defense of its activities that it only "[supplies] the technology. We don't know what the links our users send us refer to." (Major Download Site Ordered to Remove Illegal Links, NRC HANDELSBLAD, Aug. 26, 2009, available at http://www.nrc.nl/international/article2340031.ece/Major_download_site_o
rdered_to_remove_illegal_links
; Marc Hijink, In the Netherlands, Only Losers Pay for Downloads, NRC HANDELSBLAD, July 17, 2009 [changed July 20, 2009], available at http://www.nrc.nl/international/Features/article2302731.ece/In_the_Nethe
rlands%2C_only_losers_pay_for_downloads
.)

The court deemed Mininova's actions unlawful by "giving opportunity to, encouraging and profiting from infringements on copyright and neighboring rights." (Dutch Court Orders Mininova to Prevent Infringement, BREIN, Aug. 26, 2008, available at http://www.ifpi.org/content/library/Dutch_court_orders-Mininova_to_preve
nt_infringement.pdf
.) The ruling stipulates that Mininova has three months to remove all links to material that may be copyrighted; failure to comply will subject its owners to a fine of €1,000 [about US$1,426] per illegal link, capped at €5 million [about US$7.1 million], to be paid to the Brein Foundation. (Major Download Site Ordered to Remove Illegal Links, supra; see also the text of the Utrecht court decision: LJN: BJ6008, Rechtbank Utrecht, 250077/HA ZA 08-1124 [in Dutch], RECHTSPRAAK [website of the Dutch Judiciary and the Supreme Court of the Netherlands], Aug. 26, 2008, available at http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searcht
ype=ljn&ljn=BJ6008&u_ljn=BJ6008
.)

Mininova's previous measures to deal with copyright breaches, a "notice and take down" system, whereby at the specific request of copyright holders it would remove links to infringing content, were deemed insufficient by the court, which further held that Mininova must take preventive steps instead. (BREIN, supra.) In the view of Brein director Tim Kuik, "[the notice and take down approach] can help with occasional abuses, but not in the case of a structural breach of copyright." (Major Download Site Ordered to Remove Illegal Links, supra.) On the other hand, some Dutch experts blame the entertainment industry for failing to provide alternatives to address the copyright concerns. (Hijink, supra.)

Under Dutch copyright law, it is not downloading, but uploading or file-sharing that is illegal, although grey areas apparently remain in the law. Article 16b of the Copyright Law (Auteurswet) permits copying of material for private, non-commercial use, but making content available to others, through such acts as uploading, is an exclusive right of the copyright holder. (Charlotte de Boer & Aleksander Karavalev, Music Share, Be Aware!, http://vortex.uvt.nl/TILTblog/?p=78 (last visited Aug. 26, 2009); Copyright Law (of Sept. 23, 1912) (in force on Nov. 1, 1912) [in Dutch] (last amended effective Jan. 1, 2009), OVERHEID.NL, http://wetten.overheid.nl/BWBR0001886/geldig
heidsdatum_27-08-2009
(last visited Aug. 26, 2009); Law on Neighboring Rights [Wet op de naburige rechten] (of Mar. 18, 1993; in force on July 1, 1993) [in Dutch] (last amended effective Jan. 1, 2009), OVERHEID.NL, http://wetten.overheid.nl/BWBR0005921/geldigheidsdatum_17-08-2009 (last visited Aug. 26, 2009).)

The Netherlands has also adopted a national code of conduct for "notice and take down," establishing "a procedure for intermediaries that have been notified about online content that is punishable or unlawful." The code was announced in a press release on October 9, 2008. (Esther Janssen, Dutch Code for Notice-and-Take-Down, IRIS 2009-1:17/28, IRIS Legal Observations of the European Audiovisual Observatory, http://merlin.obs.coe.int/ (last visited Aug. 26, 2009) [conduct search].)

In April 2009, owners of the Swedish file-sharing website, Pirate Bay, upon their conviction as accessories to copyright infringement, were sentenced to a year of imprisonment and ordered to pay 30 million kronor (about US$3.56 million) in damages. The site was recently closed down after a Stockholm District Court ordered Black Internet to halt the supply of capacity to Pirate Bay in a ruling issued on August 24, 2009. (Pirate Bay Closed After Court Decision, THE LOCAL (Stockholm), Aug. 25, 2009, available at http://www.thelocal.se/21666/20090825/.)

Author: Wendy Zeldin More by this author
Topic: Intellectual property More on this topic
Jurisdiction: Netherlands More about this jurisdiction

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Last updated: 09/02/2009