The Dutch Court of Appeals in Amsterdam has ruled that search engine zoekmp3.nl is unlawful. This search engine provided links to mp3-files on the World Wide Web. The court chose not to answer the question whether linking itself to unauthorised mp3-files is an infringement of copyright law. The lower court had found that this was not the case. The Court of Appeals based the unlawfulness on Dutch tort law, and the specific circumstances of the case. The Court stated that in principal search engines are free to make money from providing search results to mp3-files, even if these files are known to be unauthorised. Only in particular circumstances will the search engine be liable for damage to copyright holders.
The specific circumstances the court found relevant to conclude the unlawfulness were that the search engine was specifically aimed at providing links to unauthorised files (charts). The court also found that the search engine knew that most of its visitors were looking primarily for unauthorised copies. Therefore, according to the Dutch court a warning on this matter to its visitors could not be an excuse. Further more, it found relevant that the search engine had advertisement and information that was linked to the unauthorised content, such as ring-tones of the popular songs. In general, the court came to the conclusion that the search engine was making its money by structurally exploiting the availability of unauthorised mp3-files on the World Wide Web, evidently without taking into account the interests of copyright holders. Acting as such, the search engine breached its general duty of care towards them.
Dutch copyright organisation Brein had appealed the verdict of the lower court of 12 May 2004, that had concluded there was no liability for the search engine, but a duty to react if it was notified of links to unauthorised copies. Most importantly, the lower court had ruled that a link to unauthorised mp3-files was not in breach of Dutch copyright law, because a link couldn't be considered as an act of making public a copyrighted work. In spite of this positive verdict, the owner of the search engine, Techno Design, decided to stop the search engine's activity. It also decided not to defend itself at the Court of Appeals. This had considerable effect on the verdict since some facts stated by Brein were proven mainly because of the absence of a defence.
On 23 June 2006, the trial starts against four suspects in the case of download sites Releases4u.com and Shareconnector.com. The prosecution is charging them with professional infringement of Dutch copyright law, in the context of a criminal organisation. The download sites provided a selection of links to illegal software, films, music and games on p2p-program eDonkey. As the first criminal prosecution for this practice, the trial is a test case for Dutch law. One of the defence lawyers already stated that the linking itself is not a criminal offence, nor a copyright infringement, and therefore his client should not be convicted. Civil law action against the sites by Brein was unsuccesful.
Dutch site linking to MP3 files loses court case (19.06.2006)
http://uk.news.yahoo.com/19062006/80-91/dutch-site-linking-mp3-files-l...
(Contribution by Joris van Hoboken - EDRI-member Bits of Freedom - Netherlands)