Why BREIN May Spell Trouble For Usenet
October 11, 2010 - NewsAdmin Staff Writer

Last week the legal battle between FTD and BREIN reached a Dutch courtroom, and as a long time Usenet user I have mixed emotions and concerns about their legal battle. BREIN (Protection Rights for the Entertainment, Industry Netherlands) is an anti-piracy organization that represents the recording and movie industries in the Netherlands. For those in the United States, this group would be comparable to the MPAA or RIAA. Headed by Tim Kuik, BREIN has aggressively targeted bittorrent, NZB and Usenet related sites with litigation, claiming that they facilitate the acquisition of copyrighted material. With the help of the Dutch government BREIN has successfully shut down 423 sites for copyright violations, the majority of which were bittorrent and Usenet indexing sites.

Based on our understanding, FTD is a software application that can be used to locate specific content within Usenet. The software is dependent upon FTD's user base (approximately 450,000 people) locating and reporting where specific material can be found within the newsgroups. As an example if I found file XYZ in "alt.binaries.some-group", I could share those details with other users via the FTD software. While FTD is not involved in the creation, uploading or downloading of the content it reports, a Dutch court recently ruled that they were guilty of copyright infringement (Eyeworks lawsuit) because their software makes it easier for online users to find and download copyrighted files. In this instance the court ruled that by publicizing the location of an unauthorized file posting within Usenet, FTD became the publisher of that file as if they had actually hosted it on their own servers.

I am not a lawyer, nor am I privy to the details of the BREIN/FTD lawsuit, but on the surface I'm having difficulty seeing how FTD is different from any other Internet search engine such as Google or Bing. As an example, if you're a boxing fan but don't want to spend $50 to watch Manny Pacquiao's next pay-per-view fight, you can perform a search through Google... "watch Pacquiao fight free"... and locate a variety of websites that will offer a free, illegal video stream of the fight, or any pay-per-view event for that matter. Google does not operate the illegal video stream services, they're simply reporting the location of those sites, so how is this any different from FTD reporting the location of specific content within a discussion community?

Similar to Google, FTD does not create nor deliver the content, they simply point out where material can be found. If BREIN is so adamant about aggressively fighting online piracy, why aren't they going after larger offenders such as Google? Just one person's opinion, but an argument could be made that BREIN is going after smaller fish that don't have the financial resources of a Google to defend themselves adequately in court. Additionally, it's been suggested that the media exposure they receive from their lawsuits has more to do with publicizing their organization and less to do with fighting online piracy... so you have to wonder if small sites such as FTD are just a convenient means to a self-serving end.

With that said, I do have a general problem with "search" and "indexing" sites because they're hijacking the Usenet community to some degree. Usenet has been around since the early 1980's... long before FTD and NZB... and the community is driven by a global user base that posts content through a loose collection of 20,000 independent news servers. It's a freewheeling, unrestricted environment that receives +8 million postings a day, none of which is produced, uploaded or filtered by Usenet services. The community provides a platform for free speech and expression, and in the event that unauthorized content is posted to the newsgroups the Digital Millennium Copyright Act (DMCA) gives copyright owners a simple process for having their material removed from Usenet.

Search and indexing sites promote the newsgroups being used in a manner that goes against the spirit of Usenet, but it has caused a confusing association that leads some folks to conclude that Usenet is just another file sharing network. While sites like FTD use and profit from Usenet, they do not represent nor define the community. In the course of hijacking Usenet for their own purposes, these search and indexing sites are creating undeserved attention and ligation for the community (end users, Usenet providers, etc.). While not the best analogy this would be similar to a lighter fluid company being sued or earning a bad reputation because an arsonist used their product to burn down an apartment complex.

The concern I have is that organizations such as BREIN seem determined to put an end to Usenet, and they'll do anything they can to expedite its demise. As an example BREIN has had good success closing down bittorrent and indexing sites, and they seem to be in the habit of unfairly drawing a connection between those file sharing environments and Usenet. Usenet predates the Web, it is not intended to be a file sharing network nor does it function as one, and it already has a notice-and-takedown process in place (DMCA) for addressing copyright matters, yet in the press and in the courtroom BREIN routinely depicts Usenet as just another rogue file sharing network.

For BREIN it's important to perpetuate this confusion in hopes that they'll one day bring a lawsuit in front of a non-technical judge that will be unable to discern the difference between the Usenet and file sharing communities, and will view them as one and the same. In May 2010 BREIN may have gotten it's wish when they filed a lawsuit against Usenet provider News-Service.Com. BREIN claims that the Usenet provider unlawfully stores and shares material that is protected by copyright, while News-Service's contends that they arrange the technical transfer of data in accordance with Usenet procedures and have no involvement with the content exchanged by Usenet users. Considering BREIN's mischaracterization of Usenet, and their success with suing communities that they deem similar, we can only hope that the case is heard by a thoughtful judge that understands the technical underpinnings of the suit. A ruling in favor of BREIN would establish an unfortunate precedent that would inevitably jeopardize Usenet's well being.

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