FTD is a provider of a Usenet Application which allows people to spot posts on Usenet (to find content more easily). Dutch TV producer Eyeworks found out that through FTD’s application its film ‘A Woman Visits the Doctor’ [Komt een vrouw bij de dokter] could be downloaded via Usenet. Eyeworks claimed that by facilitating an infringement on its copyright, FTD actually infringed upon Eyeworks’s copyright itself.
In a groundbreaking ruling in summary proceedings, which is published here in English (the Dutch original can be found here), the court of The Hague in The Netherlands accepted Eyework’s claim. The court found that the relevant question is ‘whether the behavior of FTD allows users to download copyrighted files (in an easier manner) and that it thus makes such files in fact available to the public.’ The court concluded that FTD indeed infringed on the copyright of Eyeworks. Facilitating the downloading of copyrighted content is thus considered ‘making available to the public‘. The Dutch court in part leaned on the earlier UK ruling in the Newzbin case, which can be found here.
The court thereby parts from earlier Dutch case law (most notably the Mininova case, which has been reported on Media Report here) in which similar facilitating, by providing torrents, only led to a tort / unlawful act and not to a direct copyright infringement.
The court described FTD’s services as follows:
2.6. FTD provides a service by which users can find and download files on Usenet in an easy way. To that end it gives access to a computer application, referred to hereinafter as FTD Application, by which users can share information about files stored in Usenet servers. In the FTD Application users post so-called spots, data regarding files which are considered interesting by users. A spot comprises the name under which the file in question can be found on Usenet.
On the question whether FTD makes works available to the public, the court rules:
4.4. FTD argues that it does not make available, because the copyrighted files are not within its power at any time. The servers in which the files are stored are not controlled by it, nor does it have any influence on the downloading by users, so it argues. Be that as it may, provisionally judging it is not relevant whether the copyrighted files are actually in the power of FTD at any time. Instead it is important whether the behavior of FTD allows users to download copyrighted files (in an easier manner) and that it thus makes such files in fact available to the public. This is the case, provisionally judging.
The court finds that FTD holds the key which is required to access the infringing content:
4.5. To this view the Preliminary Relief Judge finds it also relevant that it has become likely that FTD is actively and substantially involved in the spots. Thus the moderators appointed by FTD check, by their own initiative or not, the quality of the spots posted, users are encouraged – inter alia by means of so-called kudos – to post files which FTD must presume to be copyrighted, and – by performing the ex parte injunction – FTD has shown to be able to meet with a considerable level of accuracy an order to cease the infringement of specific copyrights by removing spots which refer to specific work. This complex of actual involvement teaches that FTD performs a key part in making files available to the public. It is the maker, owner and manager of a key by which individual users get access to copyrighted material. Without the key of FTD it is considerably harder for users to gain such access and moreover then the content which they gain access to could be of poorer quality.
This ruling may have a huge impact on all services and product that are claimed to facilitate copyright infringement. FTD appealed the verdict.