The Digital Millennium Copyright Act makes it difficult to host pirated content on U.S.-based servers. So, what do pirates do? Why move to overseas servers unbound by the DMCA, of course.
The Netherlands is a popular choice for pirates. If you’re a U.S. copyright holder with infringed content sitting on servers in the Netherlands, and you want to take legal action, read the primer below.
Target Advertisers and Affiliate Programs
Although a server may be outside of the United States, the company may not be. If a pirate site in the Netherlands hosts content for Google or Yahoo’s advertising networks, or has Amazon affiliate links, send a copyright infringement complaint to those companies. They do not tolerate infringement and will likely ban the account holder.
Send DMCA Notices to American Search Engines
Many search engines are based in the United States, and are likely to de-index problem websites. Although Google is not responsible for all infringing sites in its index, it does tend to respond to DMCA takedown notices about material that Google, itself, hosts. In other words, cached versions of websites which publish your copyrighted material may be removable by sending a DMCA notice to Google. As a result, Google may decide to de-index the website in the future to save itself the hassle of dealing with a constant stream of takedown notices.
File a Domestic Suit and Serve the Foreign Party
Even though the defendant may be in a foreign country, you can start a John Doe lawsuit domestically in the United States in an area to which the copyrighted material is transmitted. Unless the infringing website has geo-IP blocking, it is likely to be everywhere in the world.
After starting the suit, you will need to prepare rogatory letters or a Model Letter of Request using the specifications outline in the Hague Evidence Convention.
Suing in the Dutch Court System
In addition to commencing an action in the United States, which can raise sticky international copyright law complications, intellectual property holders can also launch a case locally in the Netherlands by seeking Dutch legal counsel. BREIN, the Dutch anti-piracy group, has won several cases which establish the right of a litigant to seek information from an ISP about alleged infringers (e.g., BREIN v Techno Design; BREIN v KPN).
SIDN Domain Dispute
If the issue isn’t about hosted content, but instead trademark infringement on a .nl website, you can initiate an ICANN domain name dispute investigation. In order to win an international ICANN domain dispute, you must prove the following facts:
- The domain name you want censured is identical or confusingly similar to your intellectual property;
- You are the legal copyright holder of the material being infringed upon;
- The domain registrant has no legal rights to the name, too;
- The domain was registered in bad faith.
If all of these elements exist, you can also register a complaint with the SIDN, which is the .nl TLD’s equivalent to ICANN. This procedure costs money, and the SIDN’s regulations provide no award for costs to the winning party, so it will be up to you to decide whether it is worth filing a complaint over the infringement.
This was a brief summary of how to deal with Dutch pirates. It is by no means complete, and different laws will apply to different circumstances. Additionally, new case law developments may affect the outcome of a legal proceeding.
Hopefully this summary answered a few basic questions about piracy infringement between the US and the Netherlands, but if you have international copyright problems, you should contact a qualified international intellectual property attorney.