Tuesday 20 January 2015

HOT NEWS: Amsterdam Court of Appeal gives Tom Kabinet three days to shut down

Here's some fresh news from Míchel Olmedo Cuevas, who has been following this development closely:
Earlier today, the Amsterdam Court of Appeal  delivered a ruling stating that, as Tom Kabinet provided a platform where both,legal and illegal used e-books could be resold, the website has to close within the next three days or face a fine of 1,000 a day, up to a maximum of 300,000. 
This decision follows the appeal presented by Nederlands Uitgeversverbond (NUV) and Groep Algemene Uitgevers (GAU), two Dutch collective management societies representing the interests of the literary industry, in which they asked for an immediate closure of the site. At first instance, Judge Pompe decided that the activity carried out by Tom Kabinet was lawful and should be allowed to continue. An analysis on the case by this author can be found here. 
At this stage the closure order can still be lifted if Tom Kabinet finds a way to ensure that their selling systems excludes illegally downloaded files. This should prove to be difficult, given that there are legitimate suppliers that do not provide their e-books with DRM (Digital Rights Management), making them very difficult to track. The current Tom Kabinet system provides the sold files with a watermark, so they cannot be sold more than once at a time and only by the last buyer, a system that Judge Pompe considered to be compliant with the current legal framework. 
Significantly, the court avoided deciding whether exhaustion doctrine should be finally applied to e-books, and left the question for future proceedings, where the competent court could refer questions to the CJEU, and ask the highest instance if exhaustion doctrine should apply to e-books. 
At this instance, the only goal for NUV and GAU was to obtain an injunctive relief while they wait for the final ruling, so there is still a chance for Tom Kabinet to resume their activities after the final ruling is delivered. 
The complete ruling can be read here (in Dutch). Tom Kabinet's website is here.


Andy J said...

I wonder if the CJEU's decision in Allposters C-419/13, due tomorrow, will provide a clear and unambiguous statement of the position on the exhaustion of rights for all copyright works other than software.

Laura | Dutch Law Firm AMS said...

Interesting case. When we use hardcopy books it is allowed. But nowadays it is more difficult to regulate and protect the intellectual property rights of the owners. When people sell their digital downloads they need to be erased when the sell it. I think it is hard to accomplish this. I wonder what the court will decide in this case.

Anonymous said...

I totally agree with you Laura. In my opinion, a system like the Capsule that is being used by Green Man Gaming or cloud solutions could provide the rightholder with the certainty that his work will not be copied on to the computer or any other device, what could facilitate the establishment of the "digital exhaustion", though, in that case, we would not be technically speaking about selling, but, from my personal point of view, everything would become a "potentially lifelong rent", with a deposit to be reduced depending on the length of use.

But, as Asia used to say... Only time will tell