Usenet Scores a Major Legal Victory

Dec. 7, 2016 – News Service (NSE) as they won their appeal against BREIN. In short the Amsterdam Court of Appeal found in favor of NSE. They found that NSE did not infringe on copyrights and did not act unlawfully. NSE already had a notice and takedown (NTD) procedure in place to allow copyright holders to request content be removed. Even so the court ruled in BREIN’s favor which forced NSE to close in 2011. We hope the latest ruling will lead to compensation for the lost revenue NSE sustained over the past five years and beyond.

Here are some more details from the press release posted to the News-Service site on Dec. 7th:

The Amsterdam Court of Appeal today set aside the decision of the Amsterdam District Court in the case filed by piracy fighter Stichting BREIN in 2009 against Usenet provider News-Service Europe B.V. (NSE). This means that NSE won on appeal.

The Court of Appeal ruled that NSE had not infringed copyrights, that as an intermediary, it is not liable for the infringements made on its platform by others and that NSE did not act unlawfully. Moreover, the filter imposed on NSE by the District Court in 2011 is contrary to European legislation (Article 15 of the E-Commerce Directive 2000/31/EC). This article stipulates that an intermediary cannot be obliged to exercise general monitoring.

Patrick Schreurs, former CEO: “Finally, justice! At the end of 2011 it was clear to friend and foe that the decision of the District Court could not be upheld. Even so, Stichting BREIN did not wish to await the outcome of the appeal lodged by NSE, the result being that a successful Dutch company had to cease its activities unnecessarily. That still hurts. After the appeal proceedings dragged on for over five years, the Court of Appeal has now finally ruled that we were right all along.”

However, the Appeal Court did order NSE to implement an effective notice-and-takedown procedure (NTD procedure). Such a procedure can point out to a provider the presence of unlawful material on its platform, so that it can take action and if necessary, remove the contested material. In line with the aforementioned prohibition of general monitoring, the initiative to this procedure lies not with the provider, but with the person making the report.

The order is striking because NSE already offered an effective NTD procedure before the legal proceedings were issued. In an earlier interlocutory order, the Court of Appeal denied that NSE’s NTD procedure was not effective. Moreover, offering an effective NTD procedure is one of the conditions on which an intermediary can successfully rely for exclusion of liability (section 6:196c(4) of the Dutch Civil Code). Since the Court of Appeal ruled that NSE complied with all the conditions, it had effectively labelled NSE’s NTD procedure as sufficiently effective. The court order is apparently a mere palliative.

Wierd Bonthuis, former CFO, on the judgment: “I am very satisfied that we have won on appeal in this dispute between our company and Stichting BREIN. If this judgment had been handed down by the District Court, NSE would have had no reason to cease its business activities. That, however, became inevitable when, despite the fact that we had filed an enforcement dispute, BREIN decided to enforce the judgment and left NSE with the damage.”

Aug, 19, 2014 – In a case that’s been ongoing for years the court of appeals in the Netherlands ruled in favor of News Service.  NSE was a Dutch Usenet service that closed down after an unreasonable court decision in 2011.  The appeal took nearly 3 years but Mr. Schreurs and everyone else involved in the case can be pleased by today’s appeals court ruling that Usenet providers like NSE don’t have to self police their networks.

In 2009 Bescherming Rechten Entertainment Industrie Nederland (BREIN) took News-Service (a major Usenet reseller in Europe) to court.  BREAIN claimed that NSE was responsible for the content on their network and should have to proactively remove copyrighted content.  The court sided with BREIN and required NSE not only to remove copyright content from their network but also to filter future posts without any request from the rights holder.  The unreasonable demand caused News-Service to shot down on November 4, 2011.

The appeals court still has some decisions to make but the main issue of whether or not Usenet provider’s will be expected to proactively police their servers for copyrighted content has been answered in the News-Service appeals court victory.  Dutch providers will likely need to respond to takedown notices from copyright holders.  Much like they do with DMCA requests in the United States.  That’s far better than proactively policing your network which is impossible given the massive volume of content added to newsgroups every day.

Cheers to News-Service on their court of appeals victory.  It’s been years in the making.  It has to feel good to Mr. Schreurs and everyone involved to have the court understand the technical details of the case better.  As a result the appeals court ruled in the Usenet industry’s favor.

Here are some more details from the press release posted to the News-Service site on Aug. 19th:

The court may not make it compulsory for Usenet providers to filter their message traffic. This follows from today’s judgment by the Amsterdam Court of Appeal in the case between News-Service Europe and BREIN.

The district court had previously found News-Service Europe guilty of copyright infringement. The court did not answer the question of whether News-Service Europe could successfully rely on the statutory rules that protect intermediaries such as ISPs. This ruling forced News-Service Europe to cease its activities.

In today’s judgment, the Court of Appeal reversed the judgment of the lower court. As an intermediary, News-Service Europe is not liable for possible copyright infringements by consumers. The earlier judgment of the lower court boiled down to a requirement to install a filter. The Court of Appeal has said that no such obligation may be imposed because it would mean that News-Service Europe would have to monitor its network continuously. This is contrary to settled case law of the European Court of Justice, according to the Court of Appeal. Patrick Schreurs, former CEO of NSE: “We are extremely pleased with this judgment. The Court of Appeal rightly found that a Usenet provider such as News-Service Europe cannot be expected to exercise preventative supervision of the notices posted by others.”

Interlocutory judgment
In this interlocutory judgment, the Court ruled that an intermediary such as News-Service Europe is, however, obliged to implement a so-called notice-and-takedown procedure. News-Service Europe has always said that it already had such a procedure in place. The next step is for the parties to explain to the Court of Appeal how the procedure should work and what other measures might be taken in this regard. “We look forward to this in full confidence”, said Wierd Bonthuis, NSE’s former CFO.

You can visit our Usenet providers section to learn more about newsgroup services around the world.