Case brought against Techno Design.

The Dutch Court of Appeal ruled yesterday (June 15) against Web site operators who offer deep links to unlicensed mp3 files. The decision against Techno Design Internet Programming BV, which operates zoekmp3.nl, clarifies the law, making a searchable Web site with deep links to unlicensed copyrighted files illegal in the Netherlands.

The court agreed with the position of BREIN, the Dutch anti-piracy watchdog, which argued that zoekmp3.nl “knowingly (made) structural and systematic use of the availability of illegal MP3 music files on the Internet.” The BREIN win is the latest in a series of judgments against deep-link Web sites offering thousands of unauthorized links to copyrighted music. Similar Web sites were found to be illegal in Australia (mp2s4free.net) and China (Baidu).

Techno Design was ordered to shut down the site within seven days of the ruling or face a penalty of €10,000 ($12,628 US) per day or €1,000 ($ 1,262 US) per link to an unauthorized file.

Moreover, Techno Design has been ordered to paydamages and legal costs, which have not yet been determined.

“This verdict provides the clarity that many have been asking for,” said Tim Kuik, BREIN’s managing director, in a prepared statement. “It is unlawful for a search engine, a P2P Web site or other intermediary to knowingly use the massive infringement by others.”

The judge concluded that Techno Design was aware that visitors to the Web site were illegally accessing copyright songs because the company built a database centered on the links to MP3 files.

Additionally, Techno Design gained commercially because the more visitors the unauthorized usage attracted, the more advertising income the company earned.

Also, the Appeals court stated that the defendants’ claim to its freedom of expression did not apply as that freedom had limitations when applied to copyright and neighboring rights.

BREIN originally filed the lawsuit in Amsterdam’s Lower Court in 2004, but lost the case on a technicality. BREIN immediately appealed, which led to yesterday’s ruling.

Key legal elements of the ruling are:

· Making mp3 files available on the Internet is illegal “publication” under Dutch law, where it is done without the permission of the copyright owner. The fact that zoekmp3.nl users may have made personal copies of unauthorised mp3 files does not affect the illegality of their publication.

· A warning to users on zoekmp3.nl not to infringe copyright did not excuse Techno Design from liability, since Techno Design knew that such a warning would have no impact on the behavior of its users.

· Techno Design benefited commercially from the infringements that it facilitated, since the availability of unlicensed files drove traffic to zoekmp3.nl and thus increased the revenue the company gained through advertising and the sale of ringtones.

· The court rejected Techno Design’s argument that its database of links was constructed largely automatically -- it could not “hide behind its Web spiders.” It also found that the difficulty of implementing effective filtering did not excuse its facilitation of wide-scale infringement.

· Techno Design does not qualify for the protections available to Internet service providers under the World Intellectual Property Organization (WIPO) Treaties, as its conduct goes significantly further than the mere provision of facilities for communication. Its searchable directory of links, and other facilities such as information on the quality of files, very significantly assisted illegal downloading by users.

· Article 10 of the European Convention on Human Rights, which protects freedom of expression and the right to information, does not override the rules of copyright which are necessary to protect creative content in a democratic society.

· Rightsholders have suffered damages due to Techno Design’s activities, and a separate procedure will determine the damages the company will have to pay in addition to the costs that have been awarded against it.

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