Dutch Court Says Pirate Bay Block Is Disproportionate, Ineffective And Harming Entrepreneurial Freedom
from the down-but-not-out dept
Two years ago, Techdirt reported on a couple of leading Dutch ISPs being ordered to block The Pirate Bay. To their huge credit, they did not take this lying down: they have been fighting it in the courts since, and have just won a major victory against the Dutch “anti-piracy” group BREIN. TorrentFreak has the details:
In its ruling the Court states that the Pirate Bay blockade is disproportionate and ineffective, citing TNO research and the Baywatch report of the University of Amsterdam. As a result, the blockade was found to hinder the Internet providers’ entrepreneurial freedoms.
The court based its decision on the Charter of Fundamental Rights of the European Union, which both includes “freedom to conduct a business” and “right to property.” In this case the entrepreneurial freedom outweighs property rights, because the blockades are disproportionate and ineffective.
Based on the above, the appeal court overturned the blocking order and ordered the Hollywood-funded anti-piracy group to pay 326,000 euros ($445,000) in legal fees.
That’s a great result for a number of reasons. First, because it overturns the block on The Pirate Bay for the two Dutch ISPs concerned (and probably for other ISPs too.) Secondly, because it forces BREIN to pay the significant costs for its long-running attempt to tell ISPs how they should run their businesses. And thirdly, and perhaps mostly importantly, because it creates a precedent that underlines not only the pointlessness of trying to enforce an ineffectual blockade, but also the fact that entrepreneurial freedom outweighs copyright in this situation. Although that ruling only applies in the Netherlands, other courts in Europe may well take it into consideration when they are called upon to make similar rulings.
However, there is the possibility that BREIN will appeal, as Computerworld UK reports:
The case can be appealed to the Supreme Court, said a spokesman for the Court of Appeals. But while the Supreme Court is able to overrule the verdicts of lower courts, it only examines whether a lower court observed proper application of the law in reaching its decision. At this stage of the legal process, the facts of the case as established by the lower court are no longer the subject of the court’s scrutiny.
It is too early to say if the case would be appealed, said Brein attorney Joris van Manen, adding that it is certainly worth considering.
So it would seem that BREIN may be down in this case, but it is not yet out.
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Filed Under: blocks, internet freedom, netherlands
Companies: brein, the pirate bay
Comments on “Dutch Court Says Pirate Bay Block Is Disproportionate, Ineffective And Harming Entrepreneurial Freedom”
However, there is the possibility that BREIN will appeal
BREIN will appeal without a shred of doubt. This ruling is apocalyptic news for their quixotic crusade against file sharing.
I’m laughing picturing that asshole Kuik banging his head on his desk in despair. (Is he still there?)
If there’s one “most” obnoxious branch of the MAFIAA anywhere this is one of the main candidates for the title.
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“If there’s one “most” obnoxious branch of the MAFIAA anywhere this is one of the main candidates for the title.”
the GEMA wants to have a word with you…
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I doubt it. Being overlooked for such a title would make them quite pleased.
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“I doubt it. Being overlooked for such a title would make them quite pleased.”
I don’t know about that. They’ve certainly worked hard towards it.
“But while the Supreme Court is able to overrule the verdicts of lower courts, it only examines whether a lower court observed proper application of the law in reaching its decision.”
Isn’t that the crux of this case? Whether “…entrepreneurial freedom outweighs copyright..”? It seems like this case is far from over if appealed, which seems likely.
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Yes entrepreneurial freedom should outweigh copyright. That is now a fact in the case. It should not be the crux of the case.
Also there is freedom to conduct a business and right to property which are good reasons why BREIN should not get to force someone else to do BREIN’s job at someone else’s expense.
Hey BREIN and MPAA/RIAA-holes, here is a clue. For free. It is not everyone else’s job to police the internet for copyright infringement. It’s not Google’s job either.
Try making piracy more trouble than getting it legally. Example: it’s easy to push a button on the remote to watch it on Netflix, Amazon, Hulu, etc. It’s actual trouble to have to get out of one’s chair to download it or rip it from DVD. Let alone the trouble of renting the DVD. I’m just saying that if you make it easier to get legal content, like just pushing a button on the remote, people won’t have an incentive to infringe.
Photocopiers and paperback books have existed for a long time. Yet paperback books don’t seem to have much of a copyright infringement problem.
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Copyright is granted by the creators country (at least in theory). It is not a natural right. The country has an interest in maintaining the creators copyright since it entails income to the person which amounts to some tax-payment and less social security costs. Under maintenance of copyright we have enforcement. Or to be clear: Policing for infringement will ultimately fall on the countries who want to keep copyright around!
Btw. Photocopiers are something publishers are extremely paranoid about here. If they could, they would have copiers scan what is being copied and send to their offices for review…
Making a book is more than taking copies, though, and that is the trick. Paperbacks are usually relatively cheap. If you print it yourself the paper is usually flourescent white, thin, semitransparent and sticky, while the gluecovers are hard to find in exactly the right thickness and the printing process on its own… Trust me, making your own book is a lot of work so the convenience of not having to do that work is probably more valuable than the price-aspect when we are talking paperbacks.
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“The country has an interest in maintaining the creators copyright since it entails income to the person which amounts to some tax-payment and less social security costs. Under maintenance of copyright we have enforcement.”
So, does the some-tax payment cover the costs of enforcement for these decimated copyright industries? Or would we be better off giving artists real welfare and skip the enforcement part?
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Oops! Forgot to add:
What interest does a Country have in maintaining a CREATORS copyright after it has been sold to a foreign Country?
The fight of the century!
The duo Capt. Obvious and Mr Reality vs ootb!
Who will win?!
this is the first sensible ruling to come over TPB. the next one, for the same reasons, should be levied at the entertainment industries and Hollywood! they are the worst offenders of innovation stifling and disproportionate measures. in doing what they can and what they can get politicians to help them with to maintain their ‘stranglehold’ on media releases, who knows what we, as a society, have lost? they kill things off before they get going, before anyone has had the chance top assess any impact, good or bad!!
Meanwhile, the UK will keep pissing into the wind.
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And the shills will keep pounding into the sand.
The court even stated that The Pirate Bay wasn’t infringing on copyright even though they displayed scans of DVD covers.
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That part of the ruling was mostly overlooked by the press, but just as important IMHO.
Re: Response to: Anon on Jan 28th, 2014 @ 2:48pm
That is actually not correct if you read the verdict. It states that while the dvd covers probably are infringing (stated by brein and not debated by the isp’s) this does not matter for this verdict because it is about lost sales.
Another interesting point I felt was that the block was in part overturned because it was exclusive to TPB and did not include other major torrent sites. If the block ha been wider and more effective it might even have been deemed proportional.