The proceedings against Mininova were instituted by Stichting BREIN, a foundation which represents a large number of right holders entitled to copyrights and neighboring rights. BREIN argued that Mininova should be held responsible for the large-scale copyright infringements that take place with the exchange of files by its users. Through so-called torrent links, Mininova’s platform enables internet users to find and download music, movies, software or other content that may be protected by copyright. Mininova itself only plays the role of intermediary: the files are not on its servers, but are directly transmitted from user to user. Mininova does use moderators and administrators, who monitor the platform.
BREIN had argued primarily that Mininova itself is infringing copyright law. The Court rejected this argument straightforwardly: by making available torrents Mininova does not make the copyright-protected works as such accessible or available to the user. The mere fact that Mininova offers others the opportunity to infringe copyrights is thus insufficient in order to regard Mininova itself as the entity who makes these works available within the meaning of copyright law (grounds for the judgment 4.4 and 4.7). But the Court lent a more willing ear to BREIN’s second argument, namely that Mininova is acting unlawfully because it offers the opportunity to commit copyright infringements and incites people to do so.
In this regard the Court first and foremost considered it important that through its moderators and administrators Mininova is able to monitor what is happening on the platform. Moderators can remove torrents; administrators occupy themselves with requests based on the notice and take down procedure and may take measures with regard to individual users. The Court concluded that Mininova is actively monitoring the website, because the moderators and administrators remove torrents that contain porn or viruses, or do not contain any file at all. This monitoring does not take place, however, with regard to torrents of which the moderators and administrators should suspect that they are linking to copyright-infringing files. According to the Court, the evidentiary material submitted by BREIN moreover makes clear that the administrators and moderators even encourage the downloading of infringing files. Secondly, the design of the platform shows that Mininova maintains its website well: the torrents posted by the users are neatly divided into categories and subcategories (for instance ‘TV series’ with subcategory ‘CSI’). With these categories Mininova helps users to find files of which it should suspect that they contain copyright-protected works. The Court therefore concluded that Mininova facilitates copyright infringement and, moreover, even promotes it. Because Mininova derives a considerable income from advertising via the large amounts of visitors to its website, Mininova itself profits from these copyright infringements by its users.
But is this unlawful? When answering this question, the so-called ‘safe harbor’ for internet providers plays an important role. Mininova had invoked article 6:196c subsection 4 of the Dutch Civil Code. This article stipulates that intermediaries who store information of third parties upon their request cannot, in principle, be held liable for the contents of this information. This section of the law is an implementation of the European E-Commerce Directive, and is meant to indemnify internet providers who process information on a large scale against liability claims, since these claims could considerably hinder the freedom of internet traffic. But according to the Court, this defense of Mininova does not hold: since Mininova actively occupies itself with the contents of its platform, its position cannot be compared to that of hosting providers as meant in article 6:196c subsection 4, which are purely intermediaries. Mininova can therefore be held liable for facilitating and promoting copyright infringement, and as a result Mininova is acting unlawfully towards the rightholders affiliated with BREIN.
Finally, the Court took a remarkable decision with regard to the measures which Mininova will have to take in order to undo the unlawfulness of its actions. Mininova not only has to remove all infringing torrents identified by BREIN, but also has to ensure that in the future no more torrents will be offered that link to files with regard to which there is ‘reasonable doubt’ that they contain copyright-protected works. This does not only mean that there is a risk that content will be removed which, despite reasonable doubt, is actually lawful, but also that Mininova will have to actively monitor the torrents posted by its users for possible copyright infringement. For a non-infringing intermediary, this is a very far-reaching obligation.