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Ups and Down - Author is Ed Translation - Final

Ups and Down - Author is Ed Translation - Final

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Published by: TorrentFreak_ on Dec 24, 2011
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An important issue in the debate on unlawful downloading and effective measures to combat it is
the extent of the responsibility and duty of care of ‘intermediaries’. Intermediaries facilitate the
distribution of and access to content on the internet, without usually themselves offering or using
the content. Examples of intermediaries on the internet are Internet Service Providers (ISPs),
hosting providers and the producers/facilitators of P2P software.

The responsibility of the Internet Service Providers and hosting companies is regulated through a
system of rules of liability that can be found, above all, in the implementation of the E-Commerce
Directive77

in the Dutch Civil Code, the principles of which have already been reflected in the
case law. The courts have held in various cases (dating from both before and after the
implementation of the Directive) that providing opportunity to infringe copyright does not in itself
constitute an infringement,78

but that intermediaries (such as ISPs or website operators and
perhaps also therefore providers/facilitators of P2P networks) are obliged, ‘on the grounds of the
general duty of care owed in such circumstances to cooperate and take adequate measures if they

75

See Spoor, Verkade and Visser 2005, paras. 4.30, 4.35 and 4.37; Gielen 2007, pp. 455-456 with further references to case law.
Supreme Court 24 December 1993, NJ 1994, 641, Amsterdam Court of Appeal, 17 October 1997, AMI 1997, p. 39, European
Court of Justice 7 December 2006, Case C-306/05 (Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles
SA).

76

P.B. Hugenholtz 2005, p. 228; Visser 2001, p. 13. Opinion of Advocate General D.W.F. Verkade with the Supreme Court
judgement of 19 December 2003 (BUMA/KAZAA), 1 AMI 2004, pp. 9, paras 5.1-5.13.

77

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information
society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’), OJ EC 2000 L
178, p. 1.

78

See The Hague District Court 9 June 1999, AMI 1999, p. 110 (Scientology v XS4ALL), para. 16. The Hague District Court, 5
January 2007, IER 2007/22, p. 96 (Brein v KPN), para. 4.15; Haarlem District Court, 12 May 2004, 85489/HA ZA 02-99
(Stichting Brein v Techno Design), para. 6.23; Amsterdam Court of Appeal, 28 March 2002, AMI 2002, p. 134 (KaZaA).

TNO-rapport | Ups and downs

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are informed that users of [their] computer systems are committing copyright infringements or
otherwise acting unlawfully through the service provider’s home page.’79

According to the case
law, ISPs still act unlawfully if and in so far as a) they are notified of the presence of copyrighted
content (author’s note: without the consent of the right holder), b) there are no reasonable grounds
for doubting the correctness of this notification, and c) the ISPs do not then take action as quickly
as possible to remove this information from their computer systems or make this information
inaccessible.80

This does not mean that the intermediaries are obliged to actively prevent copyright
infringements, particularly in situations where it is not possible to check whether a file to which
reference is made does constitute an infringement.81

However, it may not always be clear to the
intermediary whether copyrighted content has been put into circulation without the consent of the
author and that the notification is therefore correct. The intermediary does, after all, also have a
duty of care towards the provider of the information.82

It has been advocated that the liability rules that apply to ISPs and hosting companies should also
be applied to the producers/facilitators of P2P (software).83

What is also relevant is section 26d of the Copyright Act, on the basis of which a court may direct
intermediaries to discontinue services that are used to commit infringements. The court must take
account in this connection the share or involvement of the intermediary in the infringement, the
purpose of the claim (proportionality), the interests of the right holder and any costs and damage
the intermediary may suffer as a consequence of an order to discontinue the service.84

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