Original URL: http://www.theregister.co.uk/2006/06/21/partitality_questioned/

Dutch MP3 ruling hit by conflict of interest claims

Judges linked to rights holders

By Jan Libbenga

Posted in Media, 21st June 2006 10:58 GMT

The impartiality of two of the judges who ruled that Dutch website Mp3search.nl broke the law by posting links to copyrighted files has been called into question.

Last Friday, an appeals court in the Netherlands ruled that facilitating MP3 downloads through a search engine, even when those files are not hosted by the search engine itself, is in violation of Dutch law. Every Dutch search engine that links to illegal MP3s is affected by the ruling.

The appeals court overruled a decision by a lower court, which in 2004 sided with the owners of the site and concluded that MP3 search engines in general do not constitute copyright infringement.

However, reader comments on the Dutch news site Webwereld, which reported on the case, pointed out that two of the three judges involved in the decision are members of organisations that support professional musicians or (music) rights holders.

One of the judges is a member of Comité Executif de l'Association Littéraire et Artistique (an international agreement aimed at protecting literary and artistic copyright), whose Dutch subsidiary includes the managing director the Dutch Association of Phonogram and Videogram Producers (NVPI), who is behind anti-piracy organisation BREIN. BREIN took the website to court.

The vice president of the court is a member of a Dutch fund which also supports professional musicians.

Dutch lawyer Christiaan A Alberdingk Thijm, who defended Mp3search.nl against BREIN two years ago, said the impartiality of the court was not his biggest concern.

"What bothers me more is that this case wasn't defended at all," he told The Register. "The ruling is inherently contradictory. While the court decided not to rule on the issue of copyright infringement by Mp3search.nl, it applied a statement of the WIPO copyright treaty to conclude that the site acted unlawful."®