Court rules Dutch mp3 search engine unlawful

The Dutch Court of Appeals in Amsterdam has ruled that search engine
zoekmp3.nl is unlawful. This search engine provided links to
mp3-files on the World Wide Web. The court chose not to answer the
question whether linking itself to unauthorised mp3-files is an
infringement of copyright law. The lower court had found that this
was not the case. The Court of Appeals based the unlawfulness on
Dutch tort law, and the specific circumstances of the case. The Court
stated that in principal search engines are free to make money from
providing search results to mp3-files, even if these files are known
to be unauthorised. Only in particular circumstances will the search
engine be liable for damage to copyright holders.

The specific circumstances the court found relevant to conclude the
unlawfulness were that the search engine was specifically aimed at
providing links to unauthorised files (charts). The court also found
that the search engine knew that most of its visitors were looking
primarily for unauthorised copies. Therefore, according to the Dutch
court a warning on this matter to its visitors could not be an
excuse. Further more, it found relevant that the search engine had
advertisement and information that was linked to the unauthorised
content, such as ring-tones of the popular songs. In general, the
court came to the conclusion that the search engine was making its
money by structurally exploiting the availability of unauthorised
mp3-files on the World Wide Web, evidently without taking into
account the interests of copyright holders. Acting as such, the
search engine breached its general duty of care towards them.

Dutch copyright organisation Brein had appealed the verdict of the
lower court of 12 May 2004, that had concluded there was no liability
for the search engine, but a duty to react if it was notified of
links to unauthorised copies. Most importantly, the lower court had
ruled that a link to unauthorised mp3-files was not in breach of
Dutch copyright law, because a link couldn’t be considered as an act
of making public a copyrighted work. In spite of this positive
verdict, the owner of the search engine, Techno Design, decided to
stop the search engine’s activity. It also decided not to defend
itself at the Court of Appeals. This had considerable effect on the
verdict since some facts stated by Brein were proven mainly because
of the absence of a defence.

On 23 June 2006, the trial starts against four suspects in the case
of download sites Releases4u.com and Shareconnector.com. The
prosecution is charging them with professional infringement of Dutch
copyright law, in the context of a criminal organisation. The
download sites provided a selection of links to illegal software,
films, music and games on p2p-program eDonkey. As the first criminal
prosecution for this practice, the trial is a test case for Dutch
law. One of the defence lawyers already stated that the linking
itself is not a criminal offence, nor a copyright infringement, and
therefore his client should not be convicted. Civil law action
against the sites by Brein was unsuccesful.

Dutch site linking to MP3 files loses court case (19.06.2006)
http://uk.news.yahoo.com/19062006/80-91/dutch-site-linking-mp3-files-loses-court-case.html

(Contribution by Joris van Hoboken – EDRI-member Bits of Freedom –
Netherlands)