The Digital Millennium Copyright Act makes it difficult to host pirated content on servers in the U.S. So, what do pirates do? Move overseas.
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, this legal primer is for you.
Target Advertisers and Affiliate Programs
Although a server may reside outside the United States, the company may not be. If a pirate site in the Netherlands hosts content for Google’s 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.
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 contain infringing content, can be removed via the DMCA takedown process. 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
If a defendant is in a foreign country, you can still start a John Doe lawsuit, domestically. Unless the infringing website has geo-IP blocking, the Web page in question is likely accessible around the world.
Once filed, you’ll 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
Intellectual property holders can also launch cases in the Netherlands by seeking Dutch legal counsel. BREIN, the Dutch anti-piracy group, has won several cases which establish the right of litigants to seek identifying information on 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 URL, you can initiate an ICANN domain name dispute investigation. In order to win an international ICANN domain dispute, you must prove that:
- 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; and
- 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. Keep in mind that this procedure costs money, and the SIDN’s regulations don’t provide for monetary awards.
This post is by no means complete guide to fighting copyright infringement; different laws apply in different circumstances. Additionally, new case law developments may affect the outcome of a legal proceeding.
Hopefully, however, this summary answered a few basic questions about piracy infringement between the US and the Netherlands. If you’re dealing with international online copyright problems, contact a qualified international intellectual property attorney.