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BREIN, was back in court again with Usenet provider News-Service Europe in its target

Written by Samuel O'Toole on 08 December 2016

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Back in 2009, the Dutch anti-piracy outfit that represents the music and movie industries, BREIN took one of Europe’s largest Usenet providers, News-Service Europe (NSE) to court. The Court of Amsterdam found in BREIN’s favour and agreed that NSE willingly facilitated copyright infringement through its servers. NSE was ordered to remove all copyrighted material, and filter all future posts for copyright infringement.

However, NSE found that this filtering requirement would be too expensive to operate, as such NSE decided to shut down its servers and services whilst the appeal was being conducted.

Following two interim decisions and several years of litigation the Amsterdam Appeals Court has come to a conclusion. It was held that NSE is not liable directly or indirectly for the copyright infringement that took place through its servers, it did ask that NSE operate an effective notice and takedown procedure.  A notice and take down procedure is already operational at NSE; the Court of Appeal has even contemplated in an interim decision that NSE’s notice and take down procedure is sufficient.

NSE CEO Patrick Schreurs has explained that “The fact that we do need to implement a NTD [notice and takedown procedure] is void. Even before the lawsuit started, NSE already offered a effective NTD-procedure.”

Whilst this wasn’t the outcome that BREIN had hoped for they were quick to point out that the decision does allow for possible additional measures, which may include a filter.

This verdict is like a double edged sword; on one side the Usenet industry is reassured that it is not directly or indirectly liable for copyright infringement that takes place through its services, on the other side the case does set a precedent for rights-holders to demand a proper notice and takedown procedure.

The option to take the case to the Supreme Court is available to both parties although a decision has not been made as yet. This could allow for NSE to claim damages for the losses that have been suffered as a result of the original shutdown.

The view of Patrick Schreurs sums it up when he said “All I can say right now is that this isn’t the end”. 

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