The plan of Stichting Brein to send illegal downloaders a letter of intimidation once again ends up in court. The foundation wanted to force providers to hand over personal data of alleged downloaders. The judge ruled that this is not allowed.
The Brain Foundation receives a large sum of money from the entertainment industry to continuously combat piracy. For several years now, the foundation has embarked on a course of threatening uploaders and downloaders themselves with letters for possible settlements or lawsuits, in the hope of deterring people from downloading. The foundation proposes to collect IP addresses of Dutch downloaders for this purpose.
Will I receive a threatening letter from Brein?
However, the foundation has not yet been able to write to any downloader. The plan goes awry. The IP addresses lead to the provider, which provider can link the IP address to the name and address details of customers. Providers see themselves as a neutral party that only facilitates internet access and are not keen on handing over personal data, after which the foundation once again filed a lawsuit. several times.
In this lawsuit between Brein and provider Ziggo, the foundation tried to find out the address details of someone who may have shared e-books. The judge did not agree. First of all, the judge stated that there is insufficient evidence that the IP address holder is also the one who is acting illegally.
Ziggo is also not allowed to hand over the personal data because this is in violation of the GDPR. The judge states that the provider needs a license from the Dutch Data Protection Authority (AP) to link personal data to an IP address. Ziggo does not have this permit.
Providers are not allowed to provide personal data to Stichting Brein.
Brain has been whistled back before
It is not the first time that the Brain Foundation has come a long way. In February, the judge reached a similar conclusion after the foundation filed summary proceedings to retrieve personal data of a torrent user: the provider is not allowed to provide personal data without a license from the AP.
The foundation will not leave it at that and will appeal against both rulings. In a reaction let the foundation know that they do not agree with the ruling and that intimidating internet users with letters is the ‘least intrusive’ option. That is why the foundation believes that in this way it can ‘enforce’ on behalf of rightholders. Incidentally, the foundation may only enforce on behalf of rightholders and is itself not a judiciary that is authorized to hand out penalties.
However, it seems that the foundation has to change course again. The lenders of the foundation will undoubtedly want to see results. If the plan to scare people off by threatening letters invariably ends up in court, it will backfire on who downloads.
Downloading remains illegal
Although the foundation cannot go after individual downloaders for the time being, this does not mean that downloading is legal. After a long legal wrangle, it has been determined that both uploading and downloading protected material is illegal. In the past this was interpreted differently; a private copying levy on data carriers compensated for downloading from illegal sources. It has since been decided that this downloading is also illegal. However, the private copying levy has never been lifted.
Although downloading from illegal sources is not allowed, enforcement is difficult. Blockades of sites are easy to circumvent and with a VPN service, for example, it is not possible for Stichting Brein to find out the IP address of the downloader itself. Even if the foundation obtains the IP address, the foundation will remain empty-handed by this decision of the court.
As a result, good legal offerings seem to be the only tried-and-true way to fight piracy, as has happened before with the rise of music streaming services.
