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Skriven 2006-06-23 09:20:56 av Roy Witt (1:1/22)
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Ärende: Dutch MP3 Site Loses - The court ruling.
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Zoekmp3 Latest Victory In International Campaign Against Pirate Music
Websites

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.



Roy
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