In a 5 January 2007 ruling a Dutch district court held that an ISP had to provide personal data of a subscriber, who maintained a bittorrent tracker site, to the anti-piracy organization BREIN. In Brein v. KPN Telecom, the district court of The Hague held in summary proceedings that the tracker admin was liable for its actions under tort, but did not infringe copyrights directly. (This would be similar to the U.S. vicarious liability or contributory infringement actions.) In addition, the court held that the ISP was required, on equitable grounds, to provide name and residence information of its subscriber to BREIN, and terminate the connection of the subscriber if the same site would again come online.

This case confirms and develops Supreme Court case law that an ISP might be held to provide to copyright holders personal data of a customer under a theory of tort. (Pessers v. Lycos, in Dutch.)

Interestingly, the lower court here dismissed the claim that the mere provision of a bittorrent tracker site (and the tracker files) constitutes distribution or the making available of copyrighted works, and therefore a direct copyright infringement.

This case is the most recent installment in the ongoing scuffle between ISPs (and indirectly some of their subscribers that are likely infringing copyrights) and copyright holders and collecting societies.

An Adamant Maintainer of A Tracker Site

A broadband customer of KPN, the Dutch incumbent, decided to run a bittorrent tracker site from home, over the ADSL connection provided by KPN. The tracker dutchtorrent.org charged a fee for access to the site. So, although presumably no directly infringing material was hosted on the server, the tracker did allow for massive infringement by the users of the site. BREIN did apparently send a cease and desist letter to the admin, which the admin chose to ignore. The website did go off-line, but the admin did not provide BREIN with a written confirmation that it would not go online again, a customary request in connection with a cease and desist letter. In fact, the admin did post some belligerent statements (on the site or elsewhere on the Internet, that is not clear from the ruling), indicating the intention to go online again in the future.

BREIN was not able to determine the name and address of the website admin via public sources and consequently, BREIN was not able to hold the admin liable, in court or otherwise. Since KPN did not provide the information on request either, BREIN decided to sue KPN in order to obtain information on the identity of the bittorrent tracker site admin.

To get the court to require KPN to provide the information, BREIN would have to show that its interest in being able to hold the admin liable outweighed the interests of KPN and the subscriber.

From the ruling, it appears that the court groked well how bittorent, and a bittorrent site, works: no actual distribution of files takes place via the site, but the tracker files allow visitors of the site to download and upload files (most often, copyrighted works) .

Consequently, the court did not go along with the claimants argument that the making available of the tracker files constituted the distribution or making available of copyrighted works.

The court did however hold that, on the basis of the “mere nature of the files,” the admin of the site must have been aware that its site facilitated in a structured manner, infringement of copyrights and neighboring rights. It is not entirely clear from the published judgment, but I would assume that this is on the basis of the file names of the tracker files, which included “Over the Hedge” and “The Devil Wears Prada, ” and not on the basis of the mere bittorrent protocol.

This, and the fact that the admin charged a fee for access to the site, amounted for the court to a breach of the admin’s duty of care toward the copyright holders. The court did not go along with the claim of the ISP that BREIN, the claimant, did not provide a specified or itemized list of torrents relating to protected works when sending a cease and desist letter to the admin.

A Hesitant ISP

In November 2005, the Dutch Supreme Court had held in Pessers v. Lycos that an ISP could be held to provide subscriber data under certain circumstances. This separately from any safe-harbor provisions under the eCommerce Directive, which provide the ISP protection from liability for acts of infringements by its users.

In its defense, KPN tried to widen the requirements of Pessers v. Lycos, to include that the claimant did not obtain initial information illegally, a likelihood that the subscriber acted tortuously, and that the subscriber data is likely to lead to the actual person who acted tortuously.

The court did not go along with this and required, on the basis of the previously established rule in Pessers v. Lycos, that KPN had to provide BREIN with the subscriber data.

Most importantly, the court held that BREIN was not required to exhaust alternative means of trying to obtain the name and address of the admin, before it could turn to the ISP.

BREIN had also asked that KPN terminate the subscription of the bittorrent site admin, insofar the admin would maintain the same or similar tracker sites. The court also honored this request, going beyond the safe-harbor provisions of the eCommerce Directive, but not entirely. (This is possible, as the Directive is not exhaustive and allows for additional procedures or measures in the Member States.)

Recognizing the difficulty for KPN if it had to judge whether or not subscriber conduct was tortuous or not, the court held that KPN had to terminate the access of the subscriber upon request from BREIN, but only if the same dutchtorrent.org (or a completely similar) website would go online, under threat of a EUR 1,000 a day fine.

And this is I think the most important aspect, having to judge the illegality of customer behavior requires resources from an ISP, and potentially exposes the ISP to liability towards subscribers for removing content or terminating access, liability that might not be entirely written away in the applicable terms and conditions.

And a Determined Anti-Piracy Organization

To my knowledge, this is the second time that BREIN wins a case against an ISP, asking the ISP to provided subscriber data. (The first time was against the ISP UPC/Chello in the summer of 2006.)

According to BREIN (“the joint anti-piracy program of authors, artists and producers of music, film and interactive software”) they shut down some 115 sites in 2006, totaling 1.5 million users. (Source, in Dutch.) I am not sure what the total number of larger tracker sites was, but that is an impressive number.

A Summer Make?

As this case again shows, the EU safe-harbor rules harmonize liability for, amongst others, copyright infringements, only up to a point. National judges can, under their national civil law, go above and beyond that, and they are getting the cases that allow them to do so. It does not make ISP’s liable for now, but they clearly do have an additional burden to provide subscriber data under certain circumstances. The Netherlands is becoming an interesting jurisdiction to seek standing.

‡‡ [This is a post from Technology Law Culture: http://tlc.oosterbaan.net//. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture by: me, of a torrent in the North Cascades mountain range. Some rights reserved: BY-NC-ND 2.5 CC license.)

A bit of an off-topic post today. In the spirit of the holiday season, I am going to share with you a couple recordings of classical music, for your enjoyment. But since I can’t help myself, I will also explain briefly the reason for me being able to share the recording, namely lapsed copyright and neighboring rights.

But first things first. Please go and enjoy Kathleen Ferrier’s marvelous 1952 performance of Mahler’s Three Rückert Songs [mp3, all three songs]: Ich bin der Welt abhanden gekommen [mp3], Ich atmet’ einen linden Duft [mp3], and Um Mitternacht [mp3]. Bruno Walter conducts the Wiener Philharmonic. (The recording is mono, but I recorded it in stereo.)

Remember the Composers

As you probably know, authors receive an exclusive copyright to their works; in most countries, including the EU Member States and the United States, for 70 years after their life. These rights are based on the WTO GATT-TRIPs Agreement of 1994, itself largely incorporating by reference the Berne Convention (1971 Paris Act), and the WIPO Copyright Treaty (WCT) of 1996. The later was implemented into EU Member States law by way of the 2001 EU Copyright Directive (EUCD, 2001/29/EC), and is especially relevant to today’s chance to download the work, as it grants an additional exclusive right of communication to the public, including “the making available to the public of […] works in such a way that members of the public may access them from a place and at a time individually chosen by them.”

Since Gustav Mahler lived from 1860 to 1911, it is more than 70 years since his death, and his works are today out of copyright. (Actually, they went out of copyright in 1961 (50 years after 1911) as the 70 year term was only retroactively introduced in the EU with a 1993 Directive. However, for today’s distribution of the songs, this is not relevant.)

Friedrich Rückert, the author of the poems used in the songs, lived from 1788 to 1866, so his poems are out of copyright as well.

So, as far as the author’s of the music and the lyrics are concerned, there are no limitations to making these songs available over the Internet.

And be Mindful of the Performers, their Neighbors

Performers, like Mrs. Ferrier, Herr Walter and the member’s of the Wiener Philharmonic, do not receive copyright protection, as their performance, as artful and inspired as it may be, does not qualify for copyright since it does not meet the required test of originality. Instead, they receive a slightly different set of exclusive rights (or in the absence of those, rights to remuneration) called neighboring rights. This on the basis of again GATT-TRIPs, in addition to the Rome Convention of 1961 and the Geneva Convention of 1971, and on the basis of the little brother to the WCT, the WIPO Phonograms and Performances Treaty (WPPT) of 1996. (The later not in force in the Netherlands, although by way of the European Community as a signatory and the EU Copyright Directive, most substantive provisions still apply; I’ll skip on the niceties of that here.)

For broadcasting, performers (and phonogram producers) have a right to remuneration. For “phonograms made available to the public by wire or wireless means in such a way that members of the public may access them from a place and at a time individually chosen by them” however performers (and again, phonogram producers) have a right to exclude such use. A podcast, on-demand streaming, or even the simple download link provided above all fall under the latter.

I recorded the songs from an old Decca record, that I inherited from my grandmother. There is no date mentioned on the recording, numbered LW 5123, but it was made on 20 May 1952. (Mrs. Ferrier was already seriously ailing at the time, and died of breast cancer the following year.) Several places offer it for sale.

So, since it is more than 50 years after the recording was made available (and the performance held, the term starts depending on the one or the other) there are no limitations to making the songs available for download over the Internet. But we are not yet good to go.

And of the Producers too

The producers of phonograms receive essentially the same kind of rights, and for the same duration, as the performers. This on the basis of the same instruments, and the Geneva Phonograms Convention of 1971, although the later does not cover distribution over the Internet.

So, the producer’s rights have also lapsed.

As there are no additional right in the recording, and having checked off all the rightsholders’ rights, we can now label this recording podsafe. Enjoy!

Final Thoughts

The duration of 50 years for neighboring rights is not uncontroversial, and some debate is taking place, most vocally in the United Kingdom, on whether the term should be extended to 70 years. See from the interest group Open Rights more on that here.

My collection of 50+ year old records is fairly limited and ripping them from vinyl takes some work. If I would be interested in making a podcast with historical recordings, would I be able to instead rip the recordings from re-releases on cd? Possibly, at least under copyright. Only the person taking the trouble and expense of the first fixation receives protection as a phonogram producer, and I am not sure that any remastering receives copyright protection, and the re-use might not infringe any database rights the new producer might have in the compilation. (The tort of unfair competition might put a stop to it though.)

The above reasoning is focused on works and recording for which all rights have lapsed. For works to which rights still attach, or for which all rights are not licensed under an alternative license such a Creative Commons however, you can usually get licenses from the corresponding collecting societies, under compulsory licensing schemes or other. To read a little about that, check Colette Vogele’s Podcasting Legal Guide.

If you would like to look for more out of copyright and out of performers’ rights works, try the European Archive. To load your podcast aggregator (iTunes?) with more recent performances, try WGBH, concerts from the Isabella Steward Gardner, and for opera Premiere Opera Podcast or my favorite Scream and Kill.

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[This is a post from Technology Law Culture: http://tlc.oosterbaan.net. Olivier Oosterbaan, ICT and media lawyer in Rotterdam, the Netherlands, maintains this blog. Some rights reserved.]

(Picture from: A part from the cover of the Decca record.)

Trying to embed a linkroll for a particular del.icio.us tag on a separate page of Technology Law Culture, the statement from del.icio.us that you as the user own your bookmarks, caught my attention. This statement is perhaps not entirely true.

Do you really own – from a legal viewpoint that is – your bookmarks? And if you do own them, what can you tell others not to do with them?

Depending on whether you have many or just a few links, on what else you add (tags, notes), in what context you create them, and, oddly, where you live, you may or may not have rights on your social bookmarking collection.

Why? Because it is not a given that your (collection of) bookmarks is sufficiently original to qualify for copyright, although the collection may be protected under a database right.

The (EU) Database Right

To take del.icio.us as an example. They say:

del.icio.us does not own your bookmarks — you do! As the creator, you have the right to license this list any way you see fit.

Granted, this is a statement on the page where you set-up your feed, but is del.ico.us right? Under European law, that’s not entirely certain. Under U.S. law, I don’t know. (I really have no idea, Trackbacks, comments or e-mails on the U.S. situation are welcomed!) As del.icio.us says on their help page “it’s good to know the legal details” so let’s dive right in.

Under the Berne Convention, artistic and literary works receive copyright. But, your collection of links on say, copyright, may not be literary enough to be copyrighted.

Under the national implementing laws of the EU Database Directive, you receive a database right (which is different from, and might be received in addition to copyright in the structure of the database or the underlying constituent parts) when you make a “substantial investment” in the creation of a “collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic means” in “any form”. Sounds like a social bookmarking site to me.

But wait, in addition, I need to have made “qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents” of the collection. When is this the case? Well, although most database cases deal with telephone listings, sports fixtures and the like, in one German case, Kidnet v. Babynet, 251 links were considered a database worthy of protection. With 727 public links as of this day, I should be golden then. If I add plenty of tags, and notes describing what the content links to, the investment becomes more substantial.

And what do you get with this database right? 15 years of protection against substantial or repeated “extraction” and “re-utilization”. This might include using my feed for other purposes than I intended, as I may have expressed it with a Creative Commons license or otherwise. (By the way, the cases that I am familiar with, although playing out a time when RSS was already there, deal mostly with framing, or scraping. Push/pull adds another dimension. For one such case, read kranten.com, an early Google news if you will.)

So, when Denise Howell talks about Jason Calacanis rejecting any implied licenses in feeds, he may have a point as far as database rights are concerned as well. (That is, if he would be based in the EU; for sake of brevity and argument I am not discussing jurisdiction questions here.)

Conclusion (For Now)

So, you might have rights for your collection of bookmarks on your favorite social bookmarking site but it is not altogether sure that you can prevent the kinds of re-use that might typically be made of your collection. For example, one type of use discussed today is where a third party repurposes your collection (and that of other users) to make a “parasitical competing product” (to quote the Database Directive). Except, the product competes with whatever site or service you contributed your bookmarks to, and they are likely not the beneficiaries of a database right.

Now what? I don’t have the answer ready. (And this post is getting rather long, so the conclusion will be short.) The question about (reusing link collections from) social bookmarking collections illustrates a greater point. These days, the web has more, and more interconnected, pieces of content, moving in different directions. In addition there is meaning in the underlying syntax, whereby such meaning can be immediately apparent or needs to be extracted first (mash-ups! semantic web!). This means that we are less dealing with one-on-one (or even one-on-many) relationships, and more with small pieces loosely joined. This point is not new, but I think that the above example illustrates, if very rudimentary, how this plays out. With the live web, me might have to think a little about how to apply some of the existing rules.

(More on Database Law)

(Writing this post, I was reminded of a paper [pdf] I wrote on the topic of database law when at Duke Law in 2000. (In the paper, I manage to talk about “the right amount of incentive without too much of a stifling effect” and “the development of the computerized and networked global village” while taking myself completely seriously ^^.) In any event, since then, the ECJ (European Court of Justice) has interpreted the Database Directive in four decisions, handed down simultaneously. See for a good discussion of those cases Professors Mark J. Davison and P. Bernt Hugenholtz in EIPR 2005, Issue no. 3 [pdf].)

(By the way, I didn’t actually manage to get the linkroll I mentioned at the beginning of this post up and running quickly on WordPress, so that will have to be for another day.)

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[This is a post from Technology Law Culture: http://tlc.oosterbaan.net. Olivier Oosterbaan, ICT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]