Netherlands | Mininova

Presentation of the case by Tim Kuik (BREIN) during the webconference held on 18 December 2009
 

Dutch court orders Mininova to prevent infringement 

Mininova verdict, a closer look
Tim Kuik (BREIN)

The main point of the verdict is that Mininova has the obligation to prevent that it offers torrents to copyright protected content. This obligation is imposed because the platform structurally refers to copyright protected material and the platform is actively managed. What kind of  preventive measures Mininova must take it should figure out itself, it can retain the assistance of others who have expertise in that area.

The obligation applies for torrents which require 'reasonable doubt' that the rights holder of the referred to material has authorized the relevant publication. The court finds that such reasonable doubt in particular exists for commercial material such as feature films, TV series, music and games. The same applies of course to books and to commercial software.

In addition, the court imposes a penalty with respect to titles on a list that is provided by copyright protector BREIN. The penalty amounts to 1000 euro per torrent or per day, at the choice of BREIN, with a maximum of 5 million euro. Mininova must pay the penalty if it offers torrents that refer to the relevant copyright protected content. It is up to Mininova to verify that. The penalty is not due if the content is not copyright protected or there is consent of the rights holder.

Note: Mininova also has to do this with respect to other torrents for which there is reasonable doubt. For instance torrents to other commercial material. To avoid any doubt rights holders can report their titles to Mininova if these are not already on BREIN's list. That list concerns material that is on the market in the Netherlands or will soon be on the market. The court finds that offering torrents by Mininova is not a separate publication because the material itself is not within its control.

Please note that Mininova is an index only and does not have its own tracker. A tracker initiates the file exchange and maintains it at an optimal level. The court in the Dutch verdict against The Pirate Bay ruled that that site with tracker is infringing copyright. The court in the Mininova verdict ruled that Mininova occasionally infringes copyright by deliberately reinstating torrents to unauthorized material.

Although Mininova is found not to infringe copyright itself in general, the court finds that the platform nevertheless is acting unlawful because of its structural use of the availability of copyright protected material. A TNO study commissioned by BREIN concluded that more than 80 percent of the links in categories like "Movies", "Music" and "Games" refer to protected material.

It also is the active management of the platform that the court advances as a reason to impose the obligation to take preventive measures. This active management by Mininova is performed in particular by the moderators that are under the control of the administrators that have the actual management control. The moderators actively interfere with the content amongst others by rejecting all kinds of 'undesirable, family-unfriendly' material, while fostering the posting of links to copyright protected material.

The court finds that the Notice and Take Down (NTD) which is offered by Mininova is not enough. That NTD means that Mininova removes the torrents after a notice from the rights holder, i.e. it is the rights holder that must find and identify the torrents. The court honored the argument that this may work for incidental abuse but does not work in case of structural abuse.

The court rejected the appeal of Mininova on the prohibition of a general obligation to monitor and the limitation of liability for Internet Service Providers that store information originating from others. These rules from Article 12 to 15 of the European Directive on electronic commerce and Article 6:196 c Dutch Civil Code do not apply to Mininova. The court considers that the regulation clearly aims at the ISP that hosts websites like Mininova instead of a site like Mininova itself. Moreover the service of Mininova is not purely technical and passive but Mininova actively involves itself with the information. The so-called 'safe haven' is exclusively meant for services that are 'in no way whatsoever involved with the information originating from others'.