Copyright issue: Google refuses to provide BREIN account data

Google was recently sentenced by the Court in Preliminary Relief Proceedings to provide the data of a provider of illegal e-books to the BREIN Foundation. This is not the first time that an internet provider has to provide the data of an account holder to a third party. Which criteria are used to grant such a claim? Media lawyer Thomas van Vugt explains how it works, based on a ruling.



Illegal e-books for sale on Google Play

In this case BREIN acted against the offerer of illegal e-books by Dutch authors. These e-books were offered by account holder Flamanca Hollanda on Google Play (a kind of app store for Android) against far too low prices. Further investigation showed that this was piracy. At the request of BREIN, which represents the interests of copyright holders and acts against the unlawful exploitation of information (carriers), Google closed the account of Flamanca Hollanda. Google did not voluntarily comply with BREIN’s request to provide information about the account holder. Google – probably also to be covered legally – let it go the Court in Preliminary Relief Proceedings.

Enforcing copyright by BREIN

The Court in Preliminary Relief Proceedings granted BREIN’s request, based on the following considerations. Firstly, it was assumed that there was an infringement of the copyrights of the authors who were members of BREIN. Google did not contest this. Based on article 28 paragraph 9 of the Copyright Act, the court can order the infringing party, at the request of the entitled party, to inform the entitled party of all that is known to the infringing party about the origin and the distribution channels of the infringing products or services and to provide the entitled party with all data in this regard.

Request to internet provider to provide data

Under the same conditions, under article 28 of the Copyright Act, this order can be given to a third party who has or uses infringing property on a commercial scale, who provides services on a commercial scale that are used for the infringement, or who has been designated by one of these third parties as involved in the production, manufacture or distribution of this property or in providing these services. Google can be designated as a third party. Therefore the claim is in principle admissible.

Protection of property vs. freedom of expression?

The question is then whether the interest of BREIN prevails over the interest of Google not to provide the data. This is a conflict of fundamental rights. On the one hand the right of protection of BREIN’s (intellectual) property and the principle (under European law) that infringements of rights on intellectual property have to be combated. On the other hand the right of Google to free enterprise and of Flamanca Hollanda to freedom of expression, including the right to remain anonymous, respectively the right to privacy. A (European) fundamental right can only be restricted if this restriction is regulated by law and this restriction is necessary and proportional.

Restriction has to be necessary and proportional

The restriction in this case is regulated by law (article 28 paragraph 9 of the Copyright Act) and is necessary and proportional. In this case the interests of BREIN outweigh those of Google or Flamanca Hollanda. Also, BREIN cannot use any less drastic measures to find the identity of the holder of Flamanca Hollanda.