EDRi-gram previously reported that two Danish citizens were arrested and charged with “distributing information and instructions about illegal content” for publishing a website with information about the popular culture sharing tool Popcorn Time, which does not even contain links to infringing content. Now the content industry’s Dutch copyright enforcement body BREIN has pushed two Dutch developers of the open source tool into taking their software down from Github, a popular development platform for software, and to enter into contractual agreements with BREIN, on the basis of claims that they would face severe penalties if they resume development of the software.

BREIN announced the settlement with the developers in its press release on 23 November 2015. According to the information published, the legal basis of this “settlement” is questionable, and it reeks strongly of legal intimidation based on the “loser-pays” rules of the Directive on the enforcement of intellectual property rights, “IPRED” (2004/48/EC), This allows for judgements having the losing party of a copyright dispute to bear the full legal costs of the winning party. BREIN has since taken its own press release offline, which makes it harder to ascertain the basis of this “agreement”.

On 19 September 2003, the Dutch High Court ruled in the KaZaA case that if there was significant non-infringing use, there was no justification for banning the software. Popcorn Time is a user-friendly Bittorrent client that allows for content being distributed through the Bittorrent protocol. It is therefore widely used for sharing non-copyright infringing contents, so the KaZaA case could be seen as setting a precedent in this regard which is being ignored by BREIN. In all likelihood this will force tools like Popcorn Time to become part of the “dark web”, which will just be harder to shut down, but not really affect the level of copyright infringement.

EDRi: Two Danes arrested for publishing information about Popcorn Time (23.09.2015)

https://edri.org/two-danes-arrested-popcorn-time/

BREIN settles with Popcorn Time developers (only in Dutch, 24.11.2015))

http://nos.nl/artikel/2071083-stichting-brein-schikt-met-ontwikkelaars-popcorn-time.html

BUMA/KaZaa, Dutch High Court ruling (only in Dutch, 19.12.2003)

http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:HR:2003:AN7253

(Contribution by Walter van Holst, EDRi-member Vrijschrift, The Netherlands)