For many years, Dutch Internet users were allowed to download copyrighted content with impunity, as long as it was for their own use.
In 2014, the European Court of Justice decided that the country’s “piracy levy” through which rightsholders could be compensated, was actually unlawful.
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It took another three years for entertainment industry groups to realize the untapped potential of settlement lawsuits but in 2017 it was revealed that distribution company Dutch Filmworks (DFW) wanted to begin monitoring pirates. It didn’t immediately mention it would be seeking any compensation but that always seemed likely.
Later that year it became clear the company would indeed try to do just that, using an initial letter to alleged infringers to request payment.
“[The lettter] will propose a fee,” said DFW CEO Willem Pruijsserts. “If someone does not agree [to pay], the organization can start a lawsuit.”
However, before DFW can begin sending letters, it needs to match the IP addresses of alleged infringers with real identities and for that, it needs cooperation from ISPs. Immediately, ISPs including Ziggo refused to comply without being taken to court.
DFW went ahead wth legal action anyway and targeted 377 of Ziggo’s customers, all alleged to have downloaded the movie “The Hitman’s Bodyguard”. However, the effort failed when in February 2019 the Central Netherlands Court denied the company’s request for data.
The Court didn’t deny that those sharing copyrighted movies without permission were breaking the law. However, it also pointed out that an IP-address alone doesn’t identify an infringer. The Court also had issues with the settlement amount that DFW proposed to extract from alleged infringers, describing the ‘fine’ as “in no way substantiated” in respect of actual damages.
In response, DFW filed an appeal, stating that the judge in the case “agreed with DFW on almost all points” so felt that the ruling should have gone the distributor’s way.
“DFW is of the opinion that this decision should have been in favor of the rightsholder and it is convinced that the claim should be awarded on appeal,” the company said.
Accordingly, the Court of Appeal looked at the case and was due to deliver its verdict yesterday, September 3, 2019. However, a report from NRC now reveals that the decision will be postponed “partly due to the complexity of the case.”
A spokesperson for the Court told the publication that “we’re working hard on it” and a ruling should be handed down no later than November 5, 2019, but hopefully sooner.
While in other regions of Europe, notably countries like Germany and Sweden, the discovery process can be a fairly simple one, it seems clear that the Dutch court wants to take a much closer look at the details.
What those reservations are isn’t yet clear but the earlier insistence from DFW, that subscribers should be responsible for what happens on their connections whether they’re the infringer or not, might be playing a part in the Court’s hesitancy.
On top, of course, any decision in favor of DFW could open the floodgates to other companies seeking to obtain settlements from Internet users, something which would be music to the ears of various copyright trolls, many based in the United States and working on an industrial scale.