London, UK (IFPI) - The music industry's global fight against illegal website piracy has been boosted by a landmark judgement against a major "deep links" site in the Netherlands.
The ruling against Techno Design "Internet Programming" BV, the operator of www.zoekmp3.nl, clarifies that making available a searchable website of deep links to unlicensed mp3 files for download is illegal in the Netherlands. The judgement by the Dutch Court of Appeal, in favour of the anti-piracy organisation BREIN, overturns a June 2004 decision of the Haarlem District Court.
It is the latest in a series of judgements against "deep link" websites offering thousands of unauthorised links to copyrighted music. Similar websites have been found to be illegal in Australia (mp3s4free.net) and China (Baidu).
The Dutch Court of Appeal ruled that Techno Design was aware that its mp3 search service referred systematically to infringing files and that it benefited commercially from this without taking into account the interests of content owners.
IFPI's General Counsel Geoff Taylor said: "This is a very important decision for the creative industries in the Netherlands and internationally. There has been concern that Holland could become a centre of internet piracy, but this decision shows that the Dutch courts will not tolerate websites building a business out of facilitating copyright infringement. That is an essential condition for the legitimate digital music market to flourish. It sends a clear message to others operating "mp3 search" services that they will be held liable for the damage that they cause."
Techno Design has been ordered to stop offering deep links to infringing mp3 files through zoekmp3.nl or any other website, and to pay costs and damages (to be assessed). Failure to comply with this injunction will lead to fines of �10,000 per day, or �1,000 per infringing file.
Key elements of the ruling:
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 behaviour 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 webspiders". 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 ISPs under the World Intellectual Property Organisation (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 look at the damages the company will have to pay in addition to the costs that have been awarded against it.
