Online marketplace Marktplaats is covered by the hosting safe harbor provision in Article 6:196c(4) of the Dutch Civil Code with regard to copyright infringing advertisements. The Court of Appeals held that a service provider is neutral when it provides its service without prejudice to all its users. The fact that an intermediary acquires knowledge through a notification or through the monitoring of its website for unlawful and unwanted information does not imply that the intermediary loses its neutral position.
This case deals with the liability of the operator of video hosting platform 123video.nl, which stored, converted and categorized videos uploaded by its users. The videos in question were of pornographic nature and were uploaded by users without authorization of the copyright-owner. The District Court of Amsterdam held that the operator communicated the uploaded videos to the public and therefore infringed on Kim Holland Production’s copyrights. The Court came to this conclusion because of the operator’s active, mainly automated, involvement in the uploaded content. The operator, for instance, had created a separate category for ‘xxx’ videos, and moved all videos of pornographic nature to this category. Uploaded videos were converted to Flash-video-format, and displayed within the framework of 123video.nl. Moreover...
The website operator in question had created a website that listed, verified and categorized hash codes that could be used to download copyright protected works on the e-Donkey peer-to-peer file sharing network. These hash codes identified the content of a digital file and could be used to download files available on the peer-to-peer network through peer-to-peer file sharing software. The Court of Appeals considered that the operator did not have digital files at its disposal, nor did the operator play a role in the transmission of files. The Court held that the operator was not liable for copyright infringement as the operator did not communicate copyright-protected works to the public. However, the operator was held liable under tort law for systematically and structurally facilitating the use and presumed uploading...
This case dealt with the liability of a website operator that stored and made available torrent-files on his website. The District Court held that the storing of torrent-files is not a communication to the public and thus not a copyright infringement. The operator was held liable under tort law for structurally facilitating copyright infringements of its users. Because the operator of the torrent-website categorized the torrent-files, removed files that violated the website’s rules, gave advice on how to download files and incidentally uploaded files himself, the operator was not shielded from liability on the basis of the hosting safe harbor of Article 6:196c(4) of the Dutch Civil Code.
Self-Regulation/Voluntary Agreement/Code of Conduct
The Dutch government, businesses and interest groups created a code of conduct on 'notice and takedown.' The code contains a procedure to deal with requests to take down content. Endorsement of the code is voluntary. Internet access provider KPN, the Dutch Hosting Service Provider Association, NLKabel (an association of cable network providers). Service providers that are more involved with the provision of content, such as Google and Marktplaats/eBay endorsed the code. Brein, which represents the entertainment industry, has also endorsed the code of conduct.
Article 26d of the Dutch Copyright Act contains a rule that allows courts to subject an intermediary to an injunction without the intermediary having to commit a tort. The article reads: “At the request of the author, the court can order intermediaries whose services are used by third-parties to infringe on copyright, to stop providing the services that are used to infringe.” It thus provides a basis for a particular type of injunction that is independent from any liability under tort law. According to the Explanatory Memorandum to this article, courts do have to take into account the degree in which the intermediary is involved in the infringement, and the proportionality between the court order’s aim and the loss or damage that is suffered by the intermediary as a consequence of the court order. If the copyright...