Downloading from unlawful sources: the Dutch approach

The message may sound paradoxical, but "Copyright owners better off in a regime that allows downloading from illegal sources" was the striking title of a recent post on The 1709 Blog which reported on the 15 November ruling of the Court of Appeal of the Hague in Eyeworks v FTD.  Under the slightly more sober but no less sobering title ""Downloading from an illegal source is permitted in The Netherlands" comes the following note on the same decision from the IPKat's friend, scholar and gentleman Dirk Visser:

"Eyeworks is the producer of and copyright holder relating to the successful Dutch movie entitled Komt een vrouw bij de dokter [a.k.a. Stricken]. DVDs and BluRays of this movie were delivered to shops on 22 April 2010 for sale and rental from 27 April 2010. On the earlier date, the first unauthorised copies of the film were uploaded to Usenet. FTD provides a facility via which internet users can exchange information about where to find movies, including Komt een Vrouw bij de Dokter, and other entertainment files on Usenet. Such movies/entertainment files can then be downloaded. Places where the movie Komt een Vrouw bij de Dokter could be found were included in the FTD facility.

“FTD has not committed any copyright infringement, nor is it an intermediary within the meaning of Article 26d of the Copyright Law [based on Article 9.1 and 11 of the Enforcement directive]. FTD has, however, acted wrongfully vis-à-vis Eyeworks by encouraging the illegal uploading of the movie entitled Komt een Vrouw bij de Dokter from Eyeworks. Downloading from an illegal source is permitted under Dutch law, which means that facilitating the downloading of the film cannot be viewed as an unlawful act by FTD”.

The Court “orders FTD with immediate effect to desist from and continue to desist from having spots present for Eyeworks’ movie entitled Komt een Vrouw bij de Dokter via its FTD application”

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’."

Thanks, Dirk, for not only this note but for a full English translation, which you can read here.