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The Netherlands’ privacy watchdog has allowed private company Dutch Filmworks to begin collecting the IP addresses of illegal downloaders in an attempt to stop piracy in the country – but the move raises questions about who should do the fighting.
A subpoena was issued in favour of Dutch Filmworks, a film production company that also licenses international blockbusters such as The Wolf of Wall Street and Mechanic: Resurrection. It said the latter was downloaded 235,000 times in the Netherlands in 2017.
Dutch Filmworks asked privacy watchdog Autoriteit Persoonsgegevens (AP) for permission to start collecting data from downloaders using a German company, Excipion, that specialises in monitoring peer-to-peer traffic. The request was made a few months ago and granted in December.
While Dutch Filmworks is happy to receive a mandate to collect data, critics fear it will muddy the waters of a longstanding battle against piracy in the Netherlands. Previously, most, if not all Dutch legal anti-piracy fights were fought by Stichting BREIN, another private organisation that acted mostly on behalf of copyright holders.
BREIN’s approach has a common thread: it mostly goes after large entities and uploaders – the “big fish”, as it calls them. This approach has been praised even by internet activists – though it is sometimes criticised for prosecuting or taking down smaller related parties. Onn example was Bierdopje.com, a forum dedicated to sharing subtitles for movies, created by volunteers and movie fans. BREIN sent a cease-and-desist letter to the website owners, which cut its losses and took the forum offline.
But for companies like Dutch Filmworks, BREIN does not go far enough. That is why the company now wants to go after pirates itself by fining them, but critics are sceptical. “The plan doesn’t solve the underlying problems of piracy,” said digital rights activist group Bits of Freedom. “Rather than working on more readily accessible content, it punishes small users who see few ways to download content legally.”
Although its action is commonly referred to as a “fine” for downloading, Dutch Filmworks actually proposes to settle with the downloaders. Recently, the company revealed it had decided on a settlement of €150 per film.
People who download certain films either produced or licensed by Dutch Filmworks will be given the choice of paying the company a fine, or risk going to court – a legal battle that, according to Dutch Filmworks and legal experts, the downloaders are almost certain to lose. In the Netherlands, a losing party in a civil court case usually has to pay the legal fees of the winner, making a courtroom fight a costly affair. For most, settling would be the most attractive option.
But the question remains whether Dutch Filmworks would want to send out settlement proposals, or just use them as a scare tactic for pirates. Copyright protector BREIN has used a similar approach, threatening to prosecute individual downloaders but never following up on it.
If Dutch Filmworks does decide to send out settlements, it still has a long way to go, though the first and arguably most important hurdle has already been cleared: it has started collecting the IP addresses of users who have allegedly downloaded a certain film licensed by the company. But before it got to that point, it had to get consent from the AP.
Next up is a lengthy legal process in which Dutch Filmworks has to call on the Netherlands’ ISPs to hand over the physical addresses of the IPs it has collected, but that too will not be as easy as Dutch Filmworks hoped it would be.
At first, CEO Willem Pruijssers expressed the hope that ISPs would help his company “when they see their customers did illegal things on their network”, but major Dutch ISPs Ziggo, KPN and others were quick to refuse to cooperate. No providers in the country will simply hand over customer data to a private entity, causing Pruijssers to admit that this might be another a legal hurdle to overcome.
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On the other hand, a verdict handed down by the High Council in 2005 might suggest that ISPs are required to release personal data if there is obvious illegal activity – which piracy arguably is.
The whole process will take some time, but it is expected that ISPs will eventually be forced to comply by a judge.
There is also the question of the legality of the “fines”, although few downloaders will risk challenging Dutch Filmworks in court. Privacy lawyer Arnout Engelfriet questioned whether the penalty of €150 per film is justifiable. In Germany, similar settlements sometimes go as high as €800, but in the Netherlands that might not happen. “Compensation for damages must be fair and €150 for one movie doesn’t strike me as fair at all,” said Engelfriet on his blog.
The penalty does seem arbitrary, and Dutch Filmworks does admit it could change. “This is a first indication, based on both the damages we take from piracy as well as the costs of the process of finding downloaders,” a company spokesperson said.
Another problem is accountability, because who would, for instance, be fined in a shared housing situation? “The one who pays the bill,” said Dutch Filmworks. “If you lend your car to someone and that person speeds, you are the one who gets the ticket.”