BREIN Won’t Take Piracy Warning Dispute to The Supreme Court

Dutch anti-piracy group BREIN has been at the forefront of the anti-piracy battle since the turn of the millennium.

For most of this period, unauthorized sharing via BitTorrent has been a prime concern. Traditionally, BREIN focused its enforcement efforts on website operators, but in recent years there’s been a shift to uploaders as well.

In late 2020, the anti-piracy group announced an elaborate program to monitor and warn some of the most active BitTorrent uploaders. The goal of this “FLU” scheme was to change the behavior of prolific pirates, without obtaining their identities.

The project received government research funding but BREIN had a major obstacle to overcome. Unlike ISPs in other countries such as the United States, Dutch ISPs are not required to forward piracy notices to their subscribers.

ISP Refuses to Forward Warnings

BREIN hoped that Internet providers would be willing to cooperate, but that wasn’t to be the case. When BREIN approached Ziggo, the largest ISP in the Netherlands, with a request to forward piracy alerts to its subscribers, the company refused to do so.

According to Ziggo, linking IP addresses to specific subscribers raises serious privacy concerns, even if personal information isn’t shared with BREIN.

The anti-piracy group was unhappy with the refusal and took Ziggo to court. BREIN argued that warnings are a relatively mild measure that would help rightsholders to address the piracy problem. The system wouldn’t result in any claims for damages either, as the identities of the alleged pirates would remain private.

BREIN lost the case last year. The court found that there is no legal basis to compel Ziggo to forward warnings. In addition, the ISP lacks a license to link IP-addresses to personal information.

This outcome was a disappointment for BREIN which appealed the ruling, but without result. The appeals court affirmed the lower court’s ruling, noting that there is no legal basis to require Internet providers to forward the notices.

No Supreme Court Challenge

This was yet another setback for the anti-piracy group, which considered taking the matter to the Supreme Court. However, after weighing the available options, it chose not to do so, which effectively means the end of the original FLU program.

In its most recent annual report, the group cites the ‘costs’ as the primary reason not to appeal the matter to the highest court.

“In light of the costs, BREIN decided not to appeal at the Supreme Court,” BREIN writes. “We don’t rule out that the FLU project will be adapted to the conventional form of enforcement. In that case, a claim will be filed if the summons is not heeded.”

Having spent years developing its piracy monitoring plan, BREIN leaving the door open for a revised warning scheme is to be expected. Aside from the technical investments, BREIN was also required to obtain a data processing license. Ideally, it would like to put that to use.

Piracy Fines Are on the Table Now

BREIN typically takes a pragmatic and reasonable approach. This was exemplified by its original plan to alert or warn prolific uploaders, without having to obtain their identities. Ironically, this benign approach must now be reconsidered after the court determined there is no legal basis to compel ISPs to forward warnings.

“We think anonymous warnings are a form of enforcement but Ziggo didn’t want to do it,” BREIN director Tim Kuik tells TorrentFreak.

“The appeal court said we need to be able to bring a claim to court if there is no compliance. So we will consider adapting the FLU protocol to that. A claim could be a cease-and-desist undertaking with a fine in case of recidivism.”

In other words, BREIN is considering whether to file more concrete claims against prolific uploaders because that’s the only way they can be approached. In that case, the alleged offenders will be identified, facing a potential fine for their wrongdoing.

Open Directory Case Pending

At the moment it remains unclear what type of claim is sufficient. In a related case, the court previously decided that Ziggo didn’t have to forward a notice or disclose the identity of a subscriber who shared 200 pirated ebooks in an open directory.

This open directory case does involve a claim, BREIN contends, and the case is currently under appeal. The decision on this matter is expected in a few weeks and could provide more clarity.

BREIN will likely await the ruling in the open directory case before it takes any further decision regarding the future of the BitTorrent uploader warnings. In the meantime, its other enforcement actions will continue, of course.