Netherlands Supreme Court Judgement in Kazaa v Buma & Stemra (2003)

February 2004

Record Labels, Music Publishers, Internet

The makers of Kazaa, the computer file-sharing program, cannot be held liable for copyright infringement of music or movies swapped with its free software, the Dutch Supreme Court ruled on Friday. The Dutch court of first instance held that as Kazaa could not prevent the exchange of material between users its service was not unlawful although the acts carried out by some users were certainly infringements of copyright (see Law updates December 2002). The Supreme Court’s decision upheld the 2002 ruling which dismissed a suit filed by Buma/Stemra, the Dutch collection societies, They had originally demanded that Kazaa stop offering free downloads from its Web site or face a daily fine of $124,000.
Source: The International Federation of Phonographic Industries (IFPI).

IFPI COMMENT :The ruling on Kazaa by the Dutch Supreme Court is a flawed judgement, but still leaves no doubt that the vast majority of people who are using file-swapping services like Kazaa are acting illegally – whatever country they are in. Following the decision, the international recording industry has issued a call to Kazaa take three key steps necessary to help deal with the large numbers of unauthorised copies of copyrighted products that remain available through its service. IFPI, representing the international recording industry, believes today’s Dutch judgement is based on a one-sided presentation of the facts in very limited summary procedures. In particular IFPI believes that Kazaa is able to control and filter, and thus should be held responsible for, infringements taking place on its service. The only evidence heard in the Dutch case on this critical point was put forward by Kazaa itself. The ruling is likely to be of minor importance as it will almost certainly be overtaken by future decisions based on a full airing of the facts. Notably there is a separate case brought against Kazaa’s successors by the recording and film industries in the US, in which such evidence will be considered. Kazaa itself defaulted from this US case, which would have forced it to face a full consideration of the facts. In responding to the judgement, IFPI called on Kazaa to act responsibly and deal with the ongoing infringements taking place via its service, by taking the following steps:

1) Stop people distributing copyrighted music by changing the default setting for users of the service;
2) Explicitly notify Kazaa users that uploading copyrighted music without permission is illegal, whatever country they are in; and
3) Filter KaZaa’s service in order to protect copyrighted works from unauthorised distribution, transmission and copying.

IFPI’s view is that Kazaa is clearly able to take these steps and control the uses of its system, despite its protestations to the contrary.
Allen Dixon, General Counsel and Executive Director of IFPI, said: “The Dutch judgement is flawed because it was based on a one-sided presentation of the facts as put forward by Kazaa. We believe that any full airing of the facts would produce a different decision – including in the Netherlands. In any case, this decision has no bearing at all on the single most important fact, which is that people who are distributing copyrighted music over such systems – and that means the vast bulk of all users – are breaking the law.”


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