International Law

FILE SHARING IN THE DUTCH CARIBBEAN

By Karel.Frielink

Internet service providers should act prudently regarding claimed copyright infringement

File sharing, as is commonly understood, involves distributing or providing access to electronically stored data. One, if not the most, popular way to do this is through the use of so-called (distributed) peer-to-peer (P2P) networking programs. The rising popularity of music formats such as mp3 (a format for the compression of audio data) has led to the release and growth of software designed to make the sharing of electronic data relatively easy.

One of the legal issues involved with file sharing is that the shared data may (wholly or partially) be protected by one or more intellectual property rights. For instance, multimedia files (audio, video), documents (e.g. electronic books) and computer programs (e.g. computer games) are often protected by copyright legislation, which prohibit or restricts the sharing of such data. File sharing remains, nevertheless, widespread. Copyright holders, or rather their representatives, claiming declining sales and economic damages due to this extensive practice, are not sitting still however. In the US for instance, the fight against copyright infringement has expanded into lawsuits against users of file sharing software.

Also under Dutch Caribbean law, which contains statutory provisions addressing various intellectual property rights (such as trademarks, patents and copyrights) and enables holders of such rights to protect their rights effectively and in accordance with international standards thereby providing them with effective means to stop infringement of their rights. For instance, legal action may not only be instigated against individual users who share copyrighted data with others, e.g. based on the copyright ordinance, but in certain circumstances also against internet service providers (ISPs), for example.

While Dutch Caribbean legislation does not provide a regulatory framework such as a ?notice-and-take-down?-system as is the case in some other jurisdictions, the obligations of ISPs may be based on general tort law, on specific legislation such as the ordinance on electronic agreements, or on the contract for services vis-à-vis the ISP and the subscriber. So although a claimed copyright infringement, for instance, may not be specifically regulated, this does not preclude that in actual practice the ISP (e.g., based on the general tort law and its generally accepted standards) may be bound to abide by one or more ?rules of conduct? comparable to ones expressly stipulated in other jurisdictions.

In the absence of a clear legal framework which regulates and provides for situations such as claimed copyright infringements, ISPs would be wise to develop a policy and include, in their general terms and conditions, contractual provisions dealing with (third party) claims of infringement, and the position of the subscriber (user) in such cases, since there are privacy and other rights (e.g. based on the law of contracts) of the latter to consider.

ISPs should be prepared (e.g. by means of a clear and sound policy as well as adequate provisions in their general terms and conditions) and in specific cases act prudently when it comes to claims of copyright infringement from, for instance, (a representative of) a copyright holder. If they do not, ISPs risk claims and legal actions from both sides; from third parties/copyright holders (such as claims for economic damages) and/or from their subscribers (e.g. in case the ISP upon request/demand from such parties/holders furnishes subscriber information such as indentifying data or terminates the account).

Karel Frielink / Ursus van Bemmelen
Netherlands Caribbean Attorneys / Lawyers

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Full post as published by Karel's Legal Blog on July 04, 2009 (boomark / email).