Slashdot Mirror

I found the case documents at the Dutch court website, but believe it or not they are all anonymized!

Here you go.

The Works Council was not consulted and asked the court to intervene and the court confirmed such a policy is not legal.

This does not mean no monitoring is possible but it'll have to be done according to standards set up in consultation with the Works Council and by an approved counsellor.
Even then an individual might find recourse when he has good reasons to oppose such.

Around the same time I sat in for my manager during his holidays and both of us had no objections to not share our log-in details, it is not impossible, it's just that a boss/company can't demand it without a proper agreement.

Verdict (in Dutch, you will need to translate it): http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BQ9251

It's well-written and quite long. They went into all of the arguments in detail, including those you mention. It's a very interesting read.

Okay, responding to myself: I just found the verdict (Dutch): http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BQ9251

Very interesting part of the verdict is this (my translation):
  "Relevant is also that the rules of the game in RuneScape do not allow for a method of obtaining these goods as happened in this case. The act of removal has been committed outside the context of the game. So this is not about virtual acts in a virtual world, but factual acts that influence a virtual world."

So EVE should be okay, because it's all in the game. But if people come to your house and threaten you, it's going to be robbery and theft.

They also dealth with the argument that the victim wasn't the owner but only had a license. The court says that it is not about who operates the servers, but who has the right to determine what happens to the goods. In this case it was the account holder, as was obvious because the others had to force him to transfer goods, in order to be able to do something with them. As an example they used passports: the Dutch State owns ALL Dutch passports in existence (you only get the right to carry it but you don't own them), but the bearer of the passport can still report the document as stolen, because he no longer has the use of it.

So licenses are not as important as having the goods available. Wow, this puts a new and interesting take on things like guaranteed uptime! Is that depriving people of the right to their property? WoW is down for maintenance right now - can I sue them?

A very interesting verdict.

Ziggo and XS4ALL have as of today blocked access to the Pirate Bay. The thing is: the court ordered Ziggo and XS4ALL to block certain IP addresses associated with the Pirate Bay, based on a list given by non-governmental organisation BREIN, which purports to protect the rights of intellectual property. The court also ruled that BREIN can add IP-addresses to this list for Ziggo and XS4ALL to block, without further court rulings! Basically the've given BREIN free play to censor the internet.

I have to add that BREIN cannot add IP addresses or domain names that have nothing to do with The Pirate Bay. If they do, Ziggo and/or XS4ALL can go to court to have them removed.

Legalese of the verdict (Dutch only): http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BV0549&u_ljn=BV0549. Paragraph 5.3 mentions which IP addresses and domain names should be blocked. These are (copied & pasted from aforementioned URL):

IP-adressen:

(i) 194.71.107.15
(ii) 194.71.107.18
(iii) 194.71.107.19

Domeinnamen/(sub)domeinen:

(i) thepiratebay.org;
(ii) www.thepiratebay.org;
(iii) thepiratebay.com;
(iv) thepiratebay.net;
(v) thepiratebay.se;
(vi) piratebay.org;
(vii) piratebay.net;
(viii) piratebay.no;
(ix) piratebay.se;
(x) www.thepiratebay.com;
(xi) www.thepiratebay.net;
(xii) www.thepiratebay.se;
(xiii) www.piratebay.org;
(xiv) www.piratebay.net;
(xv) www.piratebay.no;
(xvi) www.piratebay.se.
(xvii) depiraatbaai.be
(xviii) piratebay.am
(xix) suprnova.com
(xx) themusicbay.net
(xxi) themusicbay.org
(xxii) www.suprnova.com
(xxiii) www.themusicbay.net
(xxiv) www.themusicbay.org

Note that some of the domain names have been removed since the verdict by BREIN: suprnova.com, piratebay.no and variants.

The verdict (Dutch) says in 4.56 that the ISP's can legally fight any incorrect domains specified by BREIN.

You can't patent a goddamned rectangle. That's ridiculous.

The judge in The Netherlands ruled today that you're basically correct. Patents that were at issue were the use of an image to unlock the phone and the way in which you scroll through your pictures in the gallery as well as something that has to do with multi-touch. Only the scrolling patent has been upheld, with everything else (model rights, trademarks, copyright, imitation and the other 2 patents at issue) Samsung has been ruled to be non-infringing.

However, this still means an end to sales as per October 15th unless they can repair the photo gallery before that time and get a new ruling. Which I'm pretty sure they'll do.

Ofcourse everything in this judgement can be appealed in another (longer) procedure by both sides.

The ruling is over here (in Dutch, you may want to use Google Translate): http://www.rechtspraak.nl/Organisatie/Rechtbanken/Den-Haag/Nieuws/Pages/VoorzieningenrechterverbiedtdeverhandelingvanSamsungsmartphonesGalaxyS,SIIenAce.aspx

From the verdict ( http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchtype=ljn&ljn=BK1067&u_ljn=BK1067 - Dutch ), emphasis mine...

7.2. Orders the contributors of TPB, each separately and together, to remove and keep removed any of the torrent files offered on TPB with which files containing works subject to the copyrights of authors who are members of The Brein Foundation [Stichting Brein] may be exchanged, with a penalty of EUR 5,000.00 each time they (TPB, ed.) do not conform to this order, with a maximum of EUR 3,000,000.00.

So, no, this isn't about ALL torrent files. Your Linux Distros and such are safe.

It's not just the name. The judge looked specifically at how TPB site is organized and works.

This includes endorsements and in fact calls for further torrent uploads, suggesting that people start up more -such- torrent sites, accepting torrent file uploads, indexing them, making them available for search, potentially filtering them (see an earlier comment re: empty files, viruses and child pornography), and so on.

In fact, the ruling ( http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchtype=ljn&ljn=BK1067&u_ljn=BK1067 - Dutch, sorry ) specifically states (emphasis mine):

5.7.1. It has been established that The Pirate Bay at least offers the capability to upload, search, and download torrent files. There is no disagreement between the two parties [Brein and TPB, ed.] that merely offering this capability does not violate copyright law.

In other words.. if you had a torrent search site that merely accepted uploads, indexed them, and offered them for download - at least in NL - you wouldn't be violating copyright law yourself in any way.

Whether it would protect you from the whole 'Aiding Copyright Infringement' debacle is another matter; I suspect if you didn't filter and the like, you might just be fine. You would also find your site to be immensely impopular by the masses (nothing would be easy to find), and popular with the ne'er-do-goods (seeing as you don't remove crap), including pedophiles.. which would likely land your site on a whole 'nother list altogether.

- empty torrents
- torrents with viruses
- child pornography torrents

The fact that TPB suggested that they remove such torrents actually worked against them in this case; after all, it means they do perform (some) filtering.

Judgment PDF: http://www.boek9.nl/www.delex-backoffice.nl/uploads/file/Boek9%20/Boek%209%20Uitspraken/Auteursrecht/Rb%20ASD%20Neij%20-%20Pirate%20Bay%20%2022%20oktober%202009.pdf
Judgment HTML: http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchtype=ljn&ljn=BK1067&u_ljn=BK1067

Both in Dutch; I wouldn't rely on babelfish/google translate, and user-provided translations tend to be rife with inexact translations of legal terms... should be a proper English translation in due time.

I'll translate the section that mentions these active filter claims, however...

5.9.2. In addition it has not been contested that contributors of The Pirate Bay are actively involved with torrents that are uploaded by users. Torrents that point to empty files, child pornography or viruses are removed. The Pirate Bay also offers the ability to chat with one of its contributors about the available torrents.

This is one of the findings under...

5.9. Remains the question of whether or not The Pirate Bay has illegaly acted against The Brein Foundation [Stichting Brein] by offering Torrents with which copyrighted files may be exchanged, as they (Brein) have noted in a subsidiary claim.

So as part of the findings of 5.9, determining whether TPB has acted illegaly against Brein, the active filtering issue has weighed against them; if they can filter those, then they should be able to filter torrents pointing to files of parties who are signed up with Brein.

With legal chicanery I mean e.g. leveling a barrage of nuisance lawsuits at an opponent with the objective of bankrupting the victim by forcing him to expend ruinous sums on legal counsel, or alternatively by securing unfounded convictions against the victim where he has been unable to mount an adequate legal defense (See e.g. http://www.cs.cmu.edu/~dst/Fishman/Declaration/exhibg.html).

An additional form of chicanery is to drop charges against a victim who does mount an adequate defense in order to avoid unfavorable precedents from being set against the sect (see http://www.rechtspraak.nl/Gerechten/HogeRaad/Actualiteiten/Hoge+Raad+verwerpt+het+cassatieberoep+in+de+zaak+Scientology+providers+en+Spaink.htm (in Dutch)).

Of course the wave of counter-harassment and even threats (see http://en.wikipedia.org/wiki/Project_Chanology) goes too far. But what the Cult now pleads for is to introduce a totally ambiguous definition of "Websites created with primary purpose of inciting religious vilification" (read: "anybody who says something to the effect that the Scientology sect is a nasty, dangerous, for-profit outfit") and strip those of anonymity or even the right to exist at all. In plain text: anyone who writes anything against the Scientology cult will now be exposed to harassment lawsuits, career wrecking, and intimidation (see the Fishman affidavit in one of the links above).

The full text of the "recommendations" I reproduce below:

SUMMARY OF RECOMMENDATIONS

Recommendation 1: The implementation of Criminal and Civil Restrictions on Religious Vilification.

Recommendation 2: Restriction on Anonymity on acts of Religious Vilification:

2.1 Websites created with primary purpose of inciting religious vilification shall be removed or their access to the Australian public restricted.

2.2 Creators of websites whose primary purpose is the incitement of religious vilification shall be prevented from concealing their identity.

Recommendation 3: Restriction on Religious Misinformation and Misrepresentation known or reasonably known to be untruthful in the Media

Recommendation 4: Include a form of Bill or Charter of Rights into the Australian Constitution, which prevents the Commonwealth from making any law, which 'directly, indirectly or incidentally' prohibits the free exercise of religion to the extent of such prohibition

What part of this looks as if it provides any safeguards against the most appalling abuse? Where are the checks and balances? Who determines what is "misinformation", or "incitement of religious vilification"? Would quoting court documents that state the Scientology sect pr

In dutch law it is called "citaat recht", not fair use. Check out the limit that was recently in in a lawsuit against jaap.nl. The limit was set on 155 words in te jaap.nl case.

IMHO (IANAL) your quote is beyond the point of citaat recht. The solution is simple: break up the large text and make several small quotes with relevant comments on each quote.

You are wrong on the privacy laws.
(in dutch) http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchtype=ljn&ljn=AY6903&u_ljn=AY6903

Any provider has to give up the customers address info IF there is no doubt that customer is doing something illegal. Like in this case uploading torrents to a dutch torrent site and seeding them

"It was Prof. Pouwelse's scathing analysis of the RIAA's MediaSentry 'investigations' (PDF) in a case in the Netherlands that caused the courts in that country to direct the ISPs there not to turn over their subscribers' information (PDF), thus nipping in the bud the RIAA's intended litigation juggernaut in that country."

And a couple of months later Brein (the dutch ..AA equiv.) won a case against UPC (an ISP), forcing them to hand over the subscribers information: http://zoeken.rechtspraak.nl/resultpage.aspx?snelz oeken=true&searchtype=ljn&ljn=AY6903&u_ljn=AY6903
(in dutch btw).

One of the main concerns arising from this ruling is the question wether it enables private organizations like 'Brein' to get adress-information of people who distribute illegal content via a hosting-provider.

I think this ruling does NOT provide an easy way for any Dutch private organization to do a mass attack on those who use hosting-providers to distribute illegal (copyrighted) content. One still needs to start a per-case lawsuit against a hosting-provider to let the court rule wether content is illegal. Also, the case does not say a thing about illegal content on private DSL connections etc.

The main argument that was considered in this ruling was a european (and national) law that says a hosting provider is not responsible for stored information if it can not know this information is illegal.
But the law does not say a thing on what conditions are necessary to force a hosting provider to reveal the identity of a customer.It has been ruled now that the accusations made were incorrect and harming to someones business, and therefore illegal. And so the identity of the poster had to be revealed. This is ruling is quite case-specific.

Question is wether a hosting provider _can_ know content is illegal if checking this implies listening/viewing the content of every file that is on their servers and secondly check it for being legal, as this would take an unreasonable amount of time.

Secondly, a hosting-provider need not accept any accusations that content is illegal, except accusations that come from organizations that are recognized by the Dutch government to do so. Brein, nor its parent Buma/Stemra are recognized. A branch of the Dutch tax-office is recognized for this (FIOD/ECD), but they need not (may not?) accept hints from private bodies either and they are not particularly concerned with the rights of authors.

For the Dutch-speaking among you it may be interesting to see the summary of this ruling:
http://www.rechtspraak.nl/Actualiteiten/Hoge+Raad+ verwerpt+cassatieberoep+in+de+zaak+Lycos-Pessers.h tm
Other people may try their luck using Babelfish.

The actual ruling can be read here (Dutch) : http://www.rechtspraak.nl/uitspraak/frameset.asp?l jn=AO9318

An important bit is point 6.18 :
"Anderzijds heeft de wetgever blijkens zowel de huidige Auteurswet en de Wet op de naburige rechten als de reeds genoemde Richtlijn en het daaruit voortvloeiende Wetsontwerp bepaald dat op zichzelf het kopiëren (in dit geval door middel van downloaden) van een inbreuk-makend/illegaal mp3-bestand voor eigen gebruik, geen strijd met de Auteurswet of de wet op de naburige rechten oplevert. Het downloaden van bestanden met behulp van de faciliteiten en diensten van Techno Design, is derhalve in beginsel niet inbreukma-kend noch onrechtmatig. Slechts indien de gebruiker van het gedownloade bestand dit weer verveelvoudigt of openbaar maakt kan er sprake zijn van inbreukmakend han-delen door die persoon. Dat Techno Design hierbij enige bemoeienis heeft is echter noch gesteld noch anderszins gebleken."

In plain English, the judge stated that according to (current) laws, downloading a file - even if it may infringe copyright - as an act on its own is not illegal. Only when a user then proceeds to make and/or distribute a copy of that download does an illegal act occur. He then goes on to say that it was neither claimed, nor shown, that zoekmp3.nl had any direct influence on whether people perform this last part.

Note that I didn't look up the specifics of the laws involved there, but to the untrained eye it seems to say "Downloading mp3s is legal" - and that's what really got Brein miffed.

Although I don't like the idea of having ISP's in control of what reaches my inbox, this still is good news.

For those interested, here's the link to the verdict (in Dutch)

In dutch: "Beveelt Lindows.com om binnen acht dagen na betekening van dit vonnis de toegang voor de website(s) van Lindows.com waarop zij programmatuur aanbiedt onder de naam "Lindows", "Lindows.com", en "LindowsOS", inclusief maar niet beperkt tot de website op URL http://www.lindows.com, ontoegankelijk te maken voor bezoekers uit Belgie, Nederland en Luxemburg." , which roughly translates to:
"(The court) Orders a verdict under which Lindows.com is to block access to the website of Lindows.com where she offers software under the name of "Lindows", including but not limited to the website at URL http://www.lindows.com, to all vistors from Belgium, The Netherlands and Luxembourg."

I can still access it, even though I'm from Holland, but I feel I still have the right to get the Lindows product from Lindows.com as I please.
This view of the "Internet", and the websites that it houses is quite stalinistic in my humble opinion.

If you are keen to read the Dutch court ruling or the Dutch News Channel, you can use World Lingo Translator.

Furthermore, this decision only affects distribution from The Netherlands. The advocat general briefly touches US, UK and German law, but does not draw any conclusions from this.

So, also regarding the recent decisions in California, Kazaa will probably live as a programme.

However, the BUMA/STEMRA (dutch equivalents of the US RIAA) will probably start now with lawsuits to individual end-users who offer large amounts of files on-line. A lot of case law with respect to tort by offering infriningement illegal information on-line is already available, so the real ground battle can start. Bring in the grunts (copyright lawyers, that is).

Here are some pieces of the ruling, (loosily) translated from this version in dutch.:

8. [...] Because Indymedia allows users visiting her website to place information on the internet, she is, like an ISP, but also like a daily newspaper, responsible for the through her means placed publications, be it with limitations inherent to the medium. Because Indymedia knows that some of the links placed on her website lead to the illegal articles, she should have taken countermeasures to prevent the spreading of the illegal information. It doesn't matter if Indymedia, being a press medium, actually claims ownership of the information. The question of which type of hyperlinking was used is irrelevant. The point is Indymedia makes it technologically possible to reach the information. It is also irrelevant that happened indirectly. Also because the site asked users to visit the illegal articles and contained explicit instructions on how to reach them. The fact that the illegal articles will remain on the web even if Indymedia removes her links, doesn't take away the illegal acts of Indymedia. Allowing hyperlinks isn't the issue here. It is about the information one links to. Furthermore, Indymedia said they couldn't remove the links, but do, on their site, claim to be able to remove articles about 'stolen software and fascistic content'.

9. Because the two Radikal-articles are offending to the Deutsche Bahn and can be dangerous for people and objects, the ruling to have Indymedia remove the hyperlinks and thereby making it impossible to reach the articles, is not violating the freedom of speech or freedom of press.

So because once Indymedia knew the links were on it's site, and the links came with instructions on how to reach the articles, which can create life-threatening situations for the DB railroad people, it was in error. Because of the nature of the articles, it can be enforced to remove the links. And also note that the instructions are important. Merely removing the a-href-tag around the URL won't make it legal.

Also note that here in the Netherlands we think differently about freedom of speech (and press) than the US. While Americans are keen on absolute freedom, we dutch put a couple of restrictions on things, like racism and discrimination ofcourse, but also like bringing people to commit violence (like the articles in question).

(I hope my translation isn't too crappy :))