If an anonymous trader sells illegal e-books online, the internet service provider may be ordered to reveal the infringer’s identity. As recently decided by the District Court in The Hague, the interests of the copyright holder may prevail over those of the trader and the internet provider. The anonymous trader does have a right to privacy and freedom of speech, which also includes the right to remain anonymous, but these rights will have to be weighed against the right of the copyright holder to protect its property. Furthermore, the internet service provider’s freedom to do business does not release it from its obligation to help put an end to copyright infringements. Copyright holders should therefore bear in mind that there are ways to obtain the details of anonymous infringers. And it is important for service providers to be aware that they may be forced to provide these details to copyright holders.
In May 2015, Dutch anti-piracy group Stichting BREIN learned from a Dutch publishing company that a large number of e-books, either written in or translated to Dutch, were being offered through the Google Play Books platform at very low prices under the name “Flamanca Hollanda.” In addition, in almost all of the titles offered by the account, the name of the author and the publishing house was changed to Flamanca Hollanda and “Dragonletebooks.” BREIN made a successful test purchase of such an e-book and then informed Google of the infringing activities that were occurring on Flamanca Hollanda’s Google Play account. BREIN also requested Google to take down the account and hand over the identifying company data of the party responsible for maintaining the account. Although Google deleted the infringing account, it was not willing to voluntarily provide BREIN with the data requested.
BREIN argued that in refusing to provide data, Google had violated the Copyright Act, which compels infringing or third parties to provide information on the source of an infringing distribution channel. Google argued that Google Play could not be labelled an infringer and therefore could not be ordered to hand over the information. Google also argued that in its capacity as neutral provider of an online platform, it itself did not infringe any copyrights. The court rejected Google’s defence on the ground that the competence of giving an order as referred to in the Copyright Act is not limited to proceedings in which the infringer is a party. The court also rejected the “neutral provider” defence, stating that Google – as a neutral provider of content – can be ordered to provide the requested information as the relevant provision in the Copyright Act is an implementation of the Enforcement Directive. Therefore, that Google itself does not infringe any copyrights does not necessarily mean that it does not have to hand over the information requested by BREIN.
In coming to its judgment, the judge weighed the fundamental rights of the parties involved: BREIN’s right (and the right of its members) to protect property against Google’s right to free enterprise and, subsequently, against Flamanca Hollanda’s right to freedom of speech, which could also be understood as the right to remain anonymous, or the right to privacy. BREIN had a real interest in obtaining the data needed to identify the party infringing the copyrights, namely to enforce the copyrights of its members. In addition, less drastic options were not available for BREIN to obtain the data relating to Flamanca Hollanda. The interests of Flamanca Hollanda, on the other hand, carried less weight in the court’s opinion. Although the importance of freedom of speech should not be easily disregarded, the only apparent interest of Flamanca Hollanda in this case seemed to be the illegal spreading of infringing e-books on the internet. It was also unclear why the privacy interests of Flamanca Hollanda’s holder – which was clearly running a business – should have prevailed over BREIN’s interests.
Google also did not raise any interests that carried enough weight to result in a different outcome. The breach of its right to free enterprise was considered minimal: Google only had to provide very specific data which – as it admitted – were still available to it. On these grounds, Google was ordered to provide BREIN with the data. But the court did set one condition: Google was obliged to hand over the data, unless the anonymous seller of the e-books submitted objections to Google against the handover of its data to BREIN. These objections would have to be presented to the court anonymously and accompanied by a documented and substantiated statement that no copyright infringement took place.