‘It was messy. But we won’
p2pnet.net News View:- It was messy. But we won.
Brein lost their case against ISP’s, but the reason isn’t that convincing. If Brein had done its own investigation, would the judge have ruled differently? And did the Thijm’s ‘pedophiles’ defense help?
The Ruling
The decision was more legal technical then principal. The Judges clearly aren’t nailing this technology thing down yet. It happened in Grokster and it happen here.
The main reason the court refused Brein’s request for ID’s is that it used an American company to dig up the dirt.
But if Brein had collected the evidence and IP numbers themselves -which it did with two of the 41 (?) accused – this ruling might have gone the other way.
Remember, Brein has the authority to setup a so-called "Anti-Piracy" database of names and addresses. However, this ruling merely stated that "outsourcing" the job was sloppy on Brein’s part.
What effect will this have on the other Brein case: Lycos vs Pessers? I daren’t venture a guess.
Downside
1) First of all, because of the characteristics of these proceedings, this ruling is just a ‘temporary measure’ and not a definite court opinion. This ruling will be appealed.
2) Courts can order identities to be revealed in a civil proceeding. It had previously been argued that ordering IDs to be revealed could only happen in criminal cases.
3) Under certain circumstances, ISP’s can be held liable for not handing over IDs [4.17]*. But it’s still unclear under what circumstances. Yet, this isn’t necessarily a downside. See Upside point 2-4.
4) It’s still possible for Brein to obtain IDs if ISPs have general agreements with users that ISPs can hand over IDs to third parties. For example, Dutch ISP UPC/Chello reportedly has such an general agreement with its customers which allow it to hand over their identities to third parties [4.28].
Upside
1) The court ruled the evidence gathering shady, and not in line with the Dutch Privacy Code. Brein needs more solid evidence. How much more isn’t clear. This ruling is eerily similar to the Canadian case. The Canadian courts left the industry with a roadmap to proceed, but due to the nature of the Dutch proceedings, the Dutch court could only leave a road sign.
2) The court clearly stated that Brein isn’t an "Opsporingsdienst" [4.4]. This means Brein has no authority to act as if it were a government approved investigation agency. This is the result of a letter by the Dutch minister of justice that essentially made Brein the brains [no pun intended] behind FIOD-ECD, the only government investigation agency authorized in Intellectual Property cases. However, in reality, this court’s statement won’t stop raids but…
3) Brein isn’t free to use IDs gathered at FIOD-ECD raids in civil proceedings [4.6]. This is major in the sense that, during the last raids, one of Brein’s objective was to gather more IDs for further civil prosecutions. Remember, no arrests just raids.
4) Also due to point 2) Brein can’t order ISPs directly to divulge IDs. As previously stated, there was no legal basis to order ISPs to divulge an ID to just anybody. The court ruled there’s a legal basis only for "authorities" such as FIOD-ECD, and not for Brein.
Bottom-line? Every time Brein wants a name and address, it has to go to court or follow the rules of the Dutch Privacy Code. But beware of Downside 4.
Last words
Thijm – the ISP’s defender- didn’t win. It was more a case of Brein’s lawyers losing.
Thijm wanted the case out of speed trial mode and into a more stable full proceeding. He didn’t get that.
Thijm used a surreal pedophiles argument which, luckily, didn’t become a factor.
Thijm’s defense was more a "throw everthing including the kitchen sink" but hit almost nothing.
Brein’s lawyer used their US counterparts "shock and awe" evidence in a Dutch court room. Wrong move, guys.
Its a win, nevertheless, and we’ll take it.
Raymond Blijd – fk2w
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July 13th, 2005 at 9:04 pm
What about ISP logs?? is there a law as to how long those logs must be kept? if not ISP’s can simply keep logs for a short period of time or none at all. then the industry won’t be able to prove the usage at the time of complaint? that won’t work for Static IP’s though
Rick