Downloads and levies: it's Double Dutch Day!

In "Copyright owners better off in a regime that allows downloading from illegal sources" this weblog reported on the 15 November ruling of the Court of Appeal of the Hague in Eyeworks v FTD. Today the IPKat posted the an English translation of the judgment in full (here) together with a short note from Dutch copyright practitioner and scholar Dirk Visser.

Dirk has now been able to procure an English translation of an even more complex ruling, on some of the same issues and decided by the same court on the same day, in ACI Adam BV and others v Stichting de Thuiskopie and another (here).  Explains Dirk:

"Here is another decision by the same Court from the same day, parts of it are identical (on the private copying from an illegal source), but it is an entirely different case, between different parties, brought by the blank media industry against the home copying levy organisation in the Netherlands. This one is (even) more complicated.

The Court rules that downloading from an illegal source is permitted in The Netherlands -- and has to be compensated by ‘fair compensation’ (through levies or otherwise). The Court considers that this might be in violation of the Three-step test of article 5.5 of the Copyright directive, but also that an interpretation of Dutch national copyright law in line with the directive on this issue would result in an inadmissible interpretation ‘contra legem’".

Dirk feels disappointed that neither case got as far as a reference to the Court of Justice of the European Union and, in terms of clarifying the principles involved and ensuring that courts throughout the EU take the same line ie is quite right -- though a case can be made for saying that, if the Court of Appeal of the Hague could determine the issues before it without needing external help, it was right to do so.

Nintendo games more than just 'computer software'

In November 2008 the Dutch branch of video game producer Nintendo took action against several Dutch resellers of R4 flash cards and mod chips which were intended for use on Nintendo DS, DSi and Wii products. Both the flash card and the mod chip neatly circumvented Nintendo's console technology which was supposed to stop the use of illegally copied and/or unauthorised software. Nintendo’s claims were based both on copyright and trade mark infringement, though in the end the latter turned out to be unnecessary. Dutch copyright lawyers were all curious to see whether the copyright infringement would be argued in respect of ‘computer software’ or for a ‘work protected by copyright in general’, since a video game has elements of both.

Giving judgment on 21 July 2010, the Court of The Hague said it was the element that demanded the producer's most creative efforts that should be decisive as to what sort of work was to be protected: here it was general protection as a copyright work, rather than 'computer software' which was more appropriate. Why was this? Said the Court, Nintendo’s submission pointed to an extensive creative process in which elements such as the storyline, the characters and text (collectively referred to as 'the design') are created – or at least outlined – before the software programming can even begin. Since the programming had to be fitted to the video game designed, the resulting game program was subordinate to the design.

Having ascertained what sort of work it was that Nintendo sought to protect, the next question was: which is the legal provision that protects it? Article 29a of the Dutch Copyright Act turned out to be the most suitable weapon. This Article provides that it is unlawful to circumvent measures that are intended to prevent or restrict acts regarding works protected by copyright, if those acts are not permitted by the producer or its successor. Since the flash cards and the mod chips dodged Nintendo's data copy protection, Article 29a was infringed. The fact that the protective measures by Nintendo were designed to prevent all unauthorised use, whether unlawful or not, was simply irrelevant, though the Court added that Article 29a did not measures that were more far-reaching measures than strictly preventing copyright infringement. Nor was the Court impressed by the defence plea that Nintendo was abusing its powers, since Nintendo does actually grant licences to other producers.

As a result of infringing Article 29a the defendants were ordered not to import, distribute, sell or carry out any commercial activity with the flash cards or mod chips, on pain of a penalty of EUR 10,000 per day or EUR 1,000 per product. Better still for Nintendo, destruction was ordered for all flash cards and mod chips in the defendants' possession. Nintendo still has damages to come, plus the costs of the proceedings. The Court was silent on the trade mark infringement claim: Nintendo no longer had an interest in it that would exceed the legal measures to which it was entitled, based on copyright infringement.

The 1709 Blog thanks Willem Leppink (partner/advocaat, Ploum Lodder Princen, Rotterdam) for this information.

Eyeworks: Dutch court keeps an eye on Newzbin

From Boek9.nl, via Piter de Weerd, comes news of the Hague District Court's judgment in preliminary proceedings of 2 June 2010 in Case KG ZA 10-639, FTD BV v Eyeworks Film & TV Drama BV. Says Piter, this is a ruling in which

"facilitating downloading is ‘making available to the public’. The court explicitly follows Mr Justice Kitchin in Twentieth Century Fox v Newzbin".

According to the Dutch court,

"2.1. The issue of this case is the downloading from Usenet of copyright material and the role played by [the defendant] FTD in this …

2.6. FTD provides a service by which users can find and download files on Usenet in an easy way. To that end it gives access to a computer application, referred to hereinafter as FTD Application, by which users can share information about files stored in Usenet servers. In the FTD Application users post so-called spots, data regarding files which are considered interesting by users. A spot comprises the name under which the file in question can be found on Usenet.

4.3. The present preliminary proceedings concern the question whether by its behaviour FTD makes the work available to the public.

4.4. FTD argues that it does not make available, because the copyright files are not within its power at any time. The servers in which the files are stored are not controlled by it, nor does it have any influence on the downloading by users, so it argues. Be that as it may, provisionally judging it is not relevant whether the copyright files are actually in the power of FTD at any time. Instead it is important whether the behaviour of FTD allows users to download copyright files (in an easier manner) and that it thus makes such files in fact available to the public. This is the case, provisionally judging".

On the decision of Kitchin J the court had this to say:

"4.10. The Preliminary Relief Judge looks for adhesion with a recent decision of the English court. In a judgment with detailed reasons Mr Justice Kitchin finds that Newzbin, a company operating in a way which is similar on relevant points with the behaviour of FTD, infringes copyrights, despite the circumstance that on the site of Newzbin no copyright works have been posted. Just like FTD, Newzbin offers a platform for the exchange of data concerning inter alia the exact location of copyright works in Usenet servers. Thus Newzbin allows its users to download such works (in an easier way). Just like FTD in this provisional judgment, Newzbin was actively and substantially involved in the data posted by users, inter alia by categorizing such data and – at the request of users or not – removing unusable spots. Moreover the activities of Newzbin were aimed, in the view of the English court, at (enabling) large-scale copyright infringement".

You can read the judgment in translation here or, if you prefer it in the original, here. It's good to see how much more comfortable the judiciary in Europe is when looking at decisions of other national courts within the EU: there's no suggestion that a judge is bound by a decision made by a brother judge in another country, but there is at least the prospect of a sanity check, available to any judge who might otherwise feel he was heading in the wrong direction.