Stichting BREIN vs.M
Amsterdam District Court, Judgement in the Interlocutory Proceedings of 24 January 2008, Case Number / Cause-List Number: 384773 / KG ZA 07-2249 P/TF, (the Foundation) Stichting Bescherming Rechten Entertainment Industrie Nederland (Brein) versus M.
M. is the proprietor and administrator of the website www.ShareConnector.com. Visitors to ShareConnector could download the works referred to under 2.3. onto their computer in digital form through the website, using the eDonkey network.
“4.3 ShareConnector itself does not have any files at its disposal and also, therefore, cannot offer these files. M. – be this by himself or with other people – selects and indexes the files which are made available through the eDonkey network and then makes these selected files accessible through the eDonkey peer-to-peer network. It follows that M. does not publish these files himself. The fact that he facilitates third-party publication through ShareConnector does nothing to alter this. Any infringement of the Copyright Act and/or the Neighbouring Rights Act by M. has consequently not been proven.
(…) 4.5. The following circumstances are relevant here. The sole purpose of the website is to select files, from the cluttered range of unauthorised publications on the net, whose content has been confirmed as being correct and virus free. The users are then offered the possibility of downloading the files thus selected – conveniently subdivided into categories – by using the eDonkey network. M. is aware that approx. 95% of the files selected by him and his colleagues were published without the permission of the entitled parties. His website, therefore, systematically and structurally facilitates the downloading of files which have only been made available by infringing the rights of others. M. does not generate any revenue with this. It is only a hobby. It is, for the time being, sufficiently plausible that the interested parties are suffering damage because of the availability of unauthorised files on the Internet. Being of structural and systematic assistance to the practise of infringement – purely as a hobby and without regard for the interests of the entitled parties – is contrary to the due care which M. should exercise in his social and economic life and is consequently wrongful vis-à-vis the entitled parties whose interests are represented by BREIN.”
Read the entire judgement here (translation made available by Stichting Brein).
