In a recent interim decision the Amsterdam Court of Appeal ruled that the activities of Usenet service provider NSE fall under the safe harbour provisions of the E-commerce Directive. But NSE does need to have a sufficiently effective 'notice & take down' procedure in place. The court of appeal gave clear guidelines to online service providers on what the procedure should entail, such as the minimum capacity required for the removal of infringing content. The court of appeal still has to rule on any additional measures that NSE may have to take.

In September 2011 the Amsterdam District Court ruled that News-Service Europe (NSE) committed copyright infringement by copying binaries containing copyright-protected works onto its spool servers. NSE copied all or part of the binaries in order to make them available to third parties. NSE also infringed copyright by making the binaries available to the subscribers of its resellers. Without considering the safe harbour provisions of the E-commerce Directive, the district court ordered NSE to cease and desist from committing any further copyright infringement.

In a recent decision the Amsterdam Court of Appeal agreed with the district court that NSE was making copies of protected works by duplicating files onto its spool servers. It also agreed that NSE was communicating the works to the public, as it facilitated / provided access to the protected works by a new public, namely the customers of its resellers. But unlike the district court, the court of appeal did look at NSE's exemption of liability as an intermediary, based on the safe harbour provisions. These provisions are set out in article 12 (mere conduit) and article 14 (hosting) of the E-commerce Directive.

According to the court of appeal, where NSE is storing information on its server, it cannot rely on the safe harbour provision of article 12 (mere conduit) because it is not transferring / passing on information or providing access to a communication network. The same applies to information originating from other Usenet service providers. However, NSE can rely on this exemption where it is transferring information of its own users to other Usenet service providers.

With regard to article 14 (hosting) the court of appeal ruled that NSE did not have actual knowledge of the infringing nature of the files. The services provided by NSE have a mere technical, automated and passive character. This view of the court was not altered by the fact that:

  • NSE uses a spam filter
  • retention is long and determined by NSE
  • different files have different retention times
  • users themselves cannot remove files
  • NSE puts indexes on different servers, and
  • NSE provides a search option

However, in order to rely on the safe harbour provision of article 14 NSE should have an effective 'notice and take down' procedure in place. Limiting the number of take downs per time unit is not allowed. The capacity for removing infringing materials should at least equal the capacity for placing new infringing materials. Furthermore, the time between notice and take down should be reasonable.

Having concluded that the activities of NSE fall under the safe harbour of article 14 and part of article 12 of the E-commerce Directive, the court of appeal gave its interpretation of the safe harbours: anyone who can rely on these provisions is not only exempt from liability, but is also not infringing copyright.

The court of appeal also dismissed the claims based on tort, ruling that NSE was entitled to rely on the safe harbour provisions. The court's view was that NSE's services were not created to facilitate infringing acts or aimed at facilitating those acts.

This does not mean, however, that NSE is out of the woods. The court of appeal saw room for additional measures that NSE might have to take, in addition to an effective notice and take down procedure, in order to stop misuse of its services. The court of appeal therefore suggested that the parties discuss these additional measures. As to scope, content and description, the parties should keep in mind the European Court of Justice's recent case law on reasonable measures to be taken by an access provider.

The court of appeal has not yet issued any further ruling. But whatever the outcome, the recent interim decision provides important guidelines on the liability of online service providers and the conditions for an effective notice and take down procedure.

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