Brain Foundation’s warning plan stuck in court

The Brain Foundation receives large sums of money from the entertainment industry to continually fight piracy. For several years, the foundation has taken to threatening uploaders and downloaders with letters for possible settlements or lawsuits, in hopes of deterring people from downloading. The foundation proposes to collect the IP addresses of Dutch downloaders for this purpose.

But the foundation has not yet been able to write to any downloader. The plan goes awry. IP addresses point to the provider; which provider can bind the IP address to the customers name and address details. While the providers saw themselves as a neutral party that only facilitates internet access and does not hesitate to give personal data, the foundation once again sued. several times.

In this case between Brein and provider Ziggo, the foundation sought to find the address information of someone who may have shared e-books. The judge refused. First of all, the judge stated that there was not enough evidence that the violator was also the owner of the IP address.

Ziggo is also not allowed to hand over personal data as this violates GDPR. The judge states that the provider must obtain a license from the Dutch Data Protection Authority (AP) to bind personal data to an IP address. Ziggo doesn’t have this permission.

It’s not the first time the Brain Foundation has come a long way. In February, after the foundation filed a summary lawsuit to obtain the personal data of a torrent user, the judge came to a similar conclusion: The provider is not allowed to provide personal data without a license from the AP.

The Foundation will not leave the business in this state and will appeal both decisions. In response, the foundation says they do not agree with the decision and that intimidating internet users by letter is the ‘least harsh’ option. Therefore, the foundation believes that it can ‘enforce’ it in this way on behalf of the beneficiaries. Meanwhile, the foundation can only execute on behalf of the beneficiaries and is not itself a judicial body authorized to impose penalties.

However, it seems that the foundation needs to change its course again. The foundation’s lenders will undoubtedly want to see the results. If his plan to scare people with threatening letters always ends up in court, it will backfire on whoever took it down.

While the foundation cannot go after individual downloaders at this time, that doesn’t mean it’s legal to download. After a lengthy legal battle, both uploading and downloading of protected material was determined to be illegal. In the past this has been interpreted differently; a special copying tax on data carriers compensated for downloading from illegal sources. It has since been determined that this download is also illegal. However, the custom copy tax was never lifted.

Although downloading from illegal sources is not allowed, it is difficult to implement. Site blocks are easy to circumvent and with a VPN service, for example, Stichting Brein is not able to find the downloader’s IP address. Even if the foundation gets its IP address, the foundation will be empty-handed with this court decision.

As a result, as with the rise of music streaming services before, the only tried-and-true way to combat piracy seems to be through good legal offerings.