Leiden Law Blog

Dutch Pirate Party wants to sink BREIN… and the rule of law?

Dutch Pirate Party wants to sink BREIN… and the rule of law?

In January of this year Dutch anti-piracy outfit BREIN successfully sought an injunction against Internet providers Ziggo and XS4ALL, forcing them to block access to the Pirate Bay for their customers. BREIN went after the providers because the Pirate Bay itself ignores a previous court order demanding the cessation of their activities in the Netherlands.

The blockade of the Pirate Bay was quickly circumvented through the use of so-called ‘proxy servers’. The Dutch Pirate Party, a political party seeking copyright reform, operated such a proxy server and encouraged people to bypass the blockade. Unsurprisingly, BREIN demanded an end to these activities by the Pirate Party.

The result was a public outcry against BREIN. Many Internet experts in the Netherlands, including legal scholars, applauded the move by the Pirate Party. The Pirate Party itself cried shame upon BREIN, accusing them of censorship and Big Brother practices. Few seem to care about the ramifications of the Pirate Party’s conduct though.

Let me make one thing very clear before I continue: I’m not a fan of blocking sites or filtering the Internet. There are very serious risks and drawbacks attached to blocking and filtering. But having said that, I do feel that the actions of the Pirate Party are wrong and even pose a threat to the rule of law.

We live in a democratic, constitutional state. BREIN has simply used the legal means at their disposal and followed the route prescribed by the law. You may disagree with BREIN (and there are good reasons for doing so), but in the end it is up to our independent judiciary to determine whether their demand for a blockade is an effective and proportional measure that respects subsidiarity.

It is clear that the Pirate Party disagrees with the verdict handed down by the judge, which is their democratic right. But rather than supporting an appeal or seeking a change in the law, the Pirate Party decided to actively oppose the verdict and has taken steps to circumvent it. As such, their actions undermine the authority of our judiciary, and thus the foundation of our constitutional state. This is even more worrying given the fact that the Pirate Party is an official political party. A political party, even one that is not in power, should respect the separation of powers.

The Internet may be a different place than the physical world, but even on the Internet we need respect for the rule of law. As its aptly chosen name already suggests, the Pirate Party clearly has none. 

29 Comments

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Bob Sacamano
Posted by Bob Sacamano on May 6, 2012 at 15:50

Well, mr. Lewis, when a judge declares something illegal, you can still legally inform everyone about what still IS legal. Get your facts straight, please, before posting uninformed comments like the one you posted.

The real problem here is that:
1. Downloading STILL is a better way to find what you want, despite a number of legal music services popping up. These services are always incomplete so you have to subscribe to at least four to get all the music you want. They are mostly DRM-infested so you can’t really be sure whether your files will play in five months.

2. Copyright owners have no regards for the benefits of an open internet. Just listen to those arguments complaining about Why can’t the free west shut down illegal file sharing, whereas China and Iran succeed in blocking anything? We have the technology! Yes, we do. What we don’t have is a totalitarian regime. Nice to get a sneak peek at their priorities.

3. Copyright no longer benefits the public, so the public generally is not interested in honoring those rights.

Good bye!

Fred Berman
Posted by Fred Berman on May 4, 2012 at 16:02

any blocking attempt can be circumvented. If true, people can share whatever they want whenever they want, so no problems there. so if people can continue to share whatever they want anyway, why are people so concerned about the words of a judge or politicians? I do not understand that. who cares about the pirate bay? everyone can find their movies and music anyway!

Dirk Poot
Posted by Dirk Poot on May 4, 2012 at 13:17

@John: There is a big difference between something being declared illegal, and an injunction gained in a civil court without both parties being heard. Downloading is, and always has been legal in the Netherlands.

In contrast to what the author puts forward here, the service was not started after the verdict, but long before that. It merely has not been discontinued.

As you can see from the chart below, your fear of everyone making mopney except the rightsholders is baseless, since the industry is making more money now than ever:

http://cdn.techdirt.com/images/theskyisrising.png

John E. Lewis
Posted by John E. Lewis on May 4, 2012 at 11:54

If a judge says something is illegal, you simply don’t go and explain to people how they can continue to engage in that illegal act. It’s stupid and shows disrespect to the judge, court of law and legal system. Period.

Any discussion is easily killed if people start calling judges and politicians corrupt. In that case laws and jurisprudence don’t mean a thing and it’s no use even continuing the discussion.

Now a judge can be corrupt but does that apply to all of the judges in all of the countries where it has been decided that The Pirate Bay is illegal and should be blocked???

The real problem here is that:

1. People just love to get their files for free and hate paying for it
2. People only accept legal verdicts when the verdict serves their purposes
3. Everyone making money and getting attention as a result of free file distribution would love to continue making money (publishers, advertisers, ISPs and others)

Now the reason why politicians and members of parliament - in the end - will not condone free or illegal file sharing is not that difficult to understand: it’s the slippery slope. The exact same reason used by pirates, academics and ISPs, but put into a different perspective.

Bob Sacamano
Posted by Bob Sacamano on May 4, 2012 at 11:24

All in all, a little bit of perspective would have suited you better, mr. Schermer. Unlike a single citizen, the Piratenpartij can face the law head-on because they believe it is unjust. They have enough resources to not be frightened into submission.

Mr. Schermer touches on the relevance of civil disobedience (I leave the factual discussion to those who know the fact better than me). If the law is perceived as unjust and there is no change in sight, public disobedience and rallying is a justified means, especially if the end is related to rights that our society regards as fundamental. The Piratenpartij has no plans to disobey the law and then duck and cover: they want their day in court as a means to get their point across.

Copyright, once established to either dignify authors or promote the progress of society in general, has evolved in hoarding rights for every kind of information for an indefinite time. There are reasonable grounds to oppose this (as there are to support it, no doubt), and opposing it is what the Piratenpartij does.

At the risk of taking the fundamental rights analogy too far, I wonder whether mr. Schermer would have chided slaves for wanting to bring down the rule of law when they were escaping their masters. Slaves, like the general public, have had no voice in the debate over the law in question and none is to be foreseen in the near future (remember the ACTA and SOPA/PIPA protests?). It is high time that some opposition arises and the Piratenpartij is carrying the weight for a lot of people by pooling resources to take this battle to the courts.

miw
Posted by miw on May 4, 2012 at 09:43

The separation of power is based on the principle of respecting the roles and professional work of others. In this case, the judicial powers have made rulings that limit individual freedom of expression and that enable censorship by a private company. Thus, the judicial power has itself violated the separation of powers by not applying laws that protect the fundamental freedom of civil parties.

Bart Schermer
Posted by Bart Schermer on May 3, 2012 at 23:14

@Dirk: Cool. That is very good to hear.

@Sven: ‘A freelance version of Tim Kuik’... LOL… almost sounds like a compliment grin

HRH Prince Sven Olaf of CyberBunker
Posted by HRH Prince Sven Olaf of CyberBunker on May 3, 2012 at 20:42

A “Professor of e-law” that just so happens to forget to mention that proxies and caches are not just excempt from any liability due to the EU e-commerce directive but also EXPLICITLY excempt from copyright in the dutch copyright law… and btw, I see no reason NOT to “circumvent” any corrupted court’s decisions and/or corrupted laws.

now, you can claim that those laws would have a “Democratic basis”, but if so, how come millions of people are pissed off about a law that only provides free money to a handful of people, most of which are not even dutch citizens, but based in the USA (and therefore cannot vote wink but ofcourse, they can bribe courts and politicians, and they can employ people like YOU.

(hi bart, “nice” to see you back after your “nice” article on the future of copyright about us wink LOL..

bart schermer, the freelance version of tim kuik.

Dirk Poot
Posted by Dirk Poot on May 3, 2012 at 20:37

@Bart: It maybe a bit condensed, but not entirely besides the point smile

An important issue the Piratenpartij has been raising for quite some time now is that we feel a mismatch has grown between the original concept behind copyright as envisioned by Queen Anne, where society as well as rightholders could benefit from the works that were created, and the almost perpetual monopoly for rightholders it has morphed into since.

Add to that the fact that copyright has become an increasingly powerful judicial force, elbowing out basic civil liberties more often than not, you may understand why Pirateparties take this matter very seriously. It is not about downloading, it is about the actual protection of cultural growth and an attempt at restoring the balance that copyright sought to create.

It is our respect for the spirit of the law which is forcing us to try and gain seats in parliament.

The fact that we didn’t stop our proxy services as a result of the XS4ALL/Ziggo lawsuit should not be construed as an argument for the Piratenpartij being a lawless bunch. Dutch providers not mentioned in the verdict didn’t voluntary block the Piratebay either. We have followed the letter of the law, while at the same time demonstrating the futility and the dangers of that law.

And unlike suggested earlier in the comments, we did NOT initiate the lawsuit. We were dragged into court by Stichting BREIN, who, adding insult to injury, even widened the scope of their claims to contain a very widely interpretable gag-order for a political party.
We were force to counter-sue a result of a perceived unlawful widening of the scope of the Ex Parte by the Stichting Brein. A position which was supported by the judge in the preliminary injunction.

So we may have expressed ourselves a bit direct in the past, but we have never broken the law or the verdict. Therefore, at least for my part, it was the suggestion of lawlessness in the last paragraphs that provoked my response. If we really were the lawless bunch you suggest, we would probably not have won that preliminary injunction.

I fully agree that these issues ought to be decided in an informed parliament and not in the courts, and can tell you will will try very hard to deserve and gain that seat in the coming months.
We welcome your attention and criticism, but want to make clear that we do respect the law, even as we strive to change it.

Samir Allioui
Posted by Samir Allioui on May 3, 2012 at 18:53

@Bart,
I wholeheartedly agree with you. Parliament is where law should be written, not in Court.
This is exactly why the Piratenpartij started the lawsuit in the first place.

BREIN however has been writing law in court for decades now.
Often even targeting children, knowing that they won’t defend themselves. ( Creating jurisprudence. )
Can you please tell me how that is fair?
I’m not angry with BREIN for this matter, as it’s parliamentarians who allowed this to happen.

TL;DR Upon a closer look, our opinions don’t seem to differ that much.

Bart Schermer
Posted by Bart Schermer on May 3, 2012 at 18:33

@Samir

I think Parliament is exactly the place where this should be discussed and the Pirate Party can definitely provide valuable input for a discussion on the pros and cons of filtering, as well as on copyright reform. If the Pirate Party gets elected September 12 it will have the opportunity to change and influence legislation directly. This is a better approach I feel than challenging the verdicts of the judiciary

PS; I’m always fishing for attention and publicity wink, but I feel quite strongly about the authority of the judiciary and the verdicts it hands down (be they good verdicts or bad), that is why I wrote this blog.

CB
Posted by CB on May 3, 2012 at 18:27

Technically, the opponents of restrictions on access to The Pirate Bay are absolutely right. The network-literate will be able to tunnel under any barricades that are erected, there are dozens of alternative websites, and new ones can be created in a matter of hours.
All of which rather misses the point. Just as some people still drink drive, some people will always be able to infringe copyright if they want to. The most ardent supporters of The Pirate Bay subscribe to its stated ideological mission to destroy copyright laws and have the technical skills to keep the Jolly Roger flying for as long as they like.
But the hope among film and record executives is that raising a barrier, even a porous one, will mean some people change their behaviour and switch to legal paid services. Some of the ways of circumventing blocking cost money themselves, after all.
Reasonable understanding of their position does not mean they do not deserve criticism for their approach to the internet. Licensing is still too complicated, the catalogues of legitimate services still do not match pirate websites and some some of their legal attacks on individuals have been outrageously vindictive.
But for now, whether it is symbolic or has a real impact on levels of piracy, and even if it will be circumvented, blocking The Pirate Bay is a victory for the men in suits.

http://www.telegraph.co.uk/technology/broadband/9242955/Opponents-of-the-Pirate-Bay-embargo-often-miss-the-point.html

Samir Allioui
Posted by Samir Allioui on May 3, 2012 at 18:10

It’s also interesting to note that BREIN continuously works on rentseeking, the building of a legal framework; and even openly admits to do so. Often, the reasoning in court is jurisprudence based on jurisprudence, based on jurisprudence; created mostly by BREIN and it’s henchman itself. It might be a stretch, but it’s safe to say that this one foundation is turning the functioning of the Dutch legal system into a British one. This does not only circumvent the rule of law but also opposes a threat to the very functioning of democracy it self. Having said just that however, it is not BREIN i put to blame, but a passive parliament that wisely keeps it’s mouth shut in order to not loose votes.

Knowing Bart from public debate, i can state he’s a nice guy.
He probably just wrote something controversial, fishing for some media attention and a seat at a well payed conference.

Bart Schermer
Posted by Bart Schermer on May 3, 2012 at 16:35

@Montesquieu

The Pirate Party is free to do as it wants. But as part of the system that is our constitutional state, I feel that the ‘role’ of the Pirate Party (a political party) warrants a more careful approach.

MONTESQUIEU
Posted by MONTESQUIEU on May 3, 2012 at 16:13

@Bart, clearly you argue that the PiratenPartij should have less leeway than any other (non-political) party to respond to this ruling, because it is a political party. As I argued, as a political party it should have more leeway not less. As for the method they have chosen, neither the PiratePartij nor users are circumventing the ruling itself. They are proving that the ruling is not effective and therefore not proportional, but last time I checked that is well within their rights.

Bart Schermer
Posted by Bart Schermer on May 3, 2012 at 15:54

@Montesquieu

I’m not saying that they should stay silent or are not allowed to disagree. I’m questioning the method used.

Montesquieu
Posted by Montesquieu on May 3, 2012 at 15:51

The argument by Bart Schermer relies on the presumption that once the judiciary has applied a law in a specific way, that a political party would overstep the boundaries of the trias politica by opposing the outcome of that application of the law. This would mean that once there are rulings in regard to any law, the law itself cannot should not be changed anymore because that would mean overturning the rulings that are based on it. This peculiar interpretation of trias politica however conflicts with how the they are generally applied in democratic states. In fact, if you want to be strict about it, the judiciary should not even decide cases where the law does not provide for a clear cut outcome. Either way, political parties should have more leeway than others to argue against unjust laws and unjust rulings on the basis thereof, not less.

Bart Schermer
Posted by Bart Schermer on May 3, 2012 at 15:48

@Dirk that is a little too condensed for my liking. grin

Please note that I think the Pirate Party raises very important and significant points about blocking and filtering. Like I said, I’m generally not in favour of blocking and filtering as a solution to issues of internet regulation, because there are serious issues when it comes to effectiveness, proportionality and subsidiarity.

What it boils down for me is the question of sustainable enforcement of the rule of law in the online world. In my opinion the position of the Pirate Party in this particular case undermines the (goal of) the verdict and thus the authority of the judiciary.

 

Thijs Markus
Posted by Thijs Markus on May 3, 2012 at 15:38

Weren’t you the author of ‘feiten om te delen’, now if you’re a law graduate, and the co-author of that rapport is also a lawyer, who did the actual research? You know, someone who can look at the math where those statistics are made of. Someone who knows about sampling bias, and selection bias and the like?

Now you’re saying that while BREIN is free to explore every legal route available to them, when the pirate party does so, it’s a breach of constitution? How about a private lobby organisation deciding how a 100 year old law should apply for a breach of constitution?

As for the neutrality of the law, I think judges specialised in intellectual property have a rather vested interest to make it more important than other, in their eyes less important fundamental rights, such as a fair trial, privacy, free press, and etc. Those rights don’t make them money.

Dirk Poot
Posted by Dirk Poot on May 3, 2012 at 15:36

@bart: In the end it probably boils down to what one thinks is more worrying:

1) a political party actively stepping up against censorship, within the boundaries of the law, or

2) a private lobbying organization pursuing a gag-order on a political party, effectively demanding the party ought to refrain from encouraging or even informing the public about ways to circumvent censorship.

PP
Posted by PP on May 3, 2012 at 15:21

There is nothing wrong with a political party expressing its views in regard to a specific case, if the ruling in that specific case has far reaching consequences for basic freedoms. Additionally, the very rights that are in questions are the rights that this political party has sworn to uphold. Having said that, I would have to disagree that the PiratenPartij “actively intervenes” in this case, as it is merely informing users who are affected by the ruling as opposed to targeted by the ruling. Furthermore, I would disagree that users are circumventing the verdict, as the verdict is still in place and remains unchanged. Circumventing the blockade that is in place on the basis of a ruling is not the same thing as circumventing the rule. The blockade is just not as effective as BREIN had argued that it would be, which is exactly the point that the PiratenPartij is trying to make.

Bart Schermer
Posted by Bart Schermer on May 3, 2012 at 15:04

I’m neither arguing that the Pirate Party is violating Dutch law, nor that operating a proxy is illegal.

I’m just worried about the fact that a political party actively intervenes in a case which is still before the courts and encourages users to circumvent a verdict handed down by the judge, even if the verdict itself is not aimed at the users.

Casper Gielen
Posted by Casper Gielen on May 3, 2012 at 15:01

First, the Pirateparty operated a proxy long before The Piratebay was blocked. This proxy was created to support the Arabian Spring. It is a generic proxy that can be used to reach any site on the internet.

Secondly, the Pirateparty has respected every verdict handed down by a judge. They do not respect Brein or their shady orders.

Brein threatens children with lawsuites and uses the highly controversial ex-parte procedure to get its way. Even when the Pirateparty reported to court to request a real lawsuit, Brein would not have it and still used an ex-parte (which only should be used if the opposing party can not be reached by the court in time).

The Pirateparty explores the edges of the law, but it does not go over. If anything they show how inadecate the law is in this field.
I for one am glad that the Pirateparty stepped up. Only because of the Pirateparty there is now a real lawsuit instead of mafiaa-like intimidation by Brein.

Dirk Poot
Posted by Dirk Poot on May 3, 2012 at 14:52

I believe there are some factual errors in the 2nd to last paragraph. At no point has the Piratenpartij broken the law or circumvented the law. The Pirateparty has followed the court decision to the letter. The Voorlopige Voorziening is very clear on that. The judge ruled that the Pirateparty operated within the confines of the ex parte and that BREIN had no grounds to execute the fines.

Furthermore, XS4ALL and Ziggo users are neither forbidden by a court order nor by Dutch law to visit The Piratebay. Only providers XS4All and Ziggo have a judgement against them.

Finally, as far as I can tell the Pirateparty has not been the agressor in this dispute. The Pirateparty set out to prove that, contrary to what BREIN argued in court, the ISP-blockade is not ‘the most effective tool that can be applied without serious repurcussions’. It should be pointed out that within 3 months of the original verdict, BREIN has actively pursued numerous private citizens and minors threatening them with €1000 fines per day, merely for operating a proxy.

This process had not been the most elegant maybe, but obviously necessary to point out the inherent risks in the ISP-filter verdict as well as to prove the copyright law has been allowed, over generations of parliamentary neglect, to become an overbearing legal force threatening basic human rights as freedom of expression, right to privacy, the freedom of information and freedom of political expression, to name a few.

PP
Posted by PP on May 3, 2012 at 14:43

I beg to differ. In a democratic constitutional state, political parties should have some leeway to propagate views that differ from the legal state of affairs, as their function is to shape what is considered legal and under what circumstances it is considered so. The judiciary merely applies the existing legal framework to specific cases. In this specific case, the PiratenPartij wasn’t a party in the proceedings and does nothing that defies the ruling itself. The fact that proxies are and will be available to defeat the blockade is something that was known and explicitly mentioned in the ruling. The ruling itself did not impose any restrictions on proxies and it is a bit of a stretch to claim that any proxy should proactively abide by the intention of the ruling as opposed to the wording of the ruling, especially when it comes to political parties.

Robin
Posted by Robin on May 3, 2012 at 14:38

As far as i know, hosting a Proxy is still considered legal in the Netherlands. Besides that, i also believe the Proxy was running far before the blockade against the pirate bay was set-up. Initially for allowing access to WikiLeaks if i’m correct.

Another big problem (for me) is that BREIN also demanded that the Pirate Party should no longer be allowed to talk about proxies whatsoever.

Bart Schermer
Posted by Bart Schermer on May 3, 2012 at 14:20

The judge has ordered an end to the infringements by means of an IP and DNS blockade. The effectiveness of these measures is indeed up for discussion and thus an important issue to address. Fortunately, this question of effectiveness is currently being addressed in a similar case of BREIN vs. Tele2 / UPC / KPN.

Challenging the effectiveness (as well as proportionality and subsidiarity) of a measure in the public debate is good, however actively undermining a verdict and encouraging ‘civil disobedience’ is a step too far for a political party I think.

Michiel Glas
Posted by Michiel Glas on May 3, 2012 at 10:08

I wholeheartedly agree with your fears concerning persons ignoring and openly opposing judicial rulings (another good example was Peter R. de Vries airing a show and just paying the required fine).

On the other hand, just as BREIN used legal means to achieve their wishes, isn’t it true that the use of proxy servers to ‘circumvent’ a blockade was legal as well?! I have little knowledge of eLaw, but if the former can be answered in the affirmative then the ruling, or maybe even the law, suffers from a hiatus that ought to be fixed.

In a broader perspective, part of the democratic society, and thus I understand, the rule of law, is the clashing of opinions (using legal means). The result of this clash are rules or better rules to fix the problem that was battled. Maybe the steps taken by the Pirate Party, although not very elegant, can contribute to a fixing of a ‘proxy hiatus’.

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