Dutch courts hold deeplink search engine illegal

July 2006

Internet, record labels

The music industry’s global fight against websites offering links to illegal downloads has been boosted by an action against a ’deeplinks’ 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.  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. 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 E10,000 per day, E1,000 per infringing file. The Court held that 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. It further held that 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 and the difficulty of implementing effective filtering did not excuse its facilitation of wide-scale infringement. The court also held that the website was not afforded any protection under WIPO treaties as its actions went significantly beyond providing communication facilities and significantly assisted illegal downloading of files (echoing the US concept of ‘inducing’ copyright infringement found in MGM v Grokster). Damages are yet to be assessed. Source: www.ifpi.org

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