Usenet provider Eweka must provide user data to Brein

The judge has ruled that usenet provider Eweka must provide the customer data of a former user to Stichting Brein. The organization demanded the release of the data in summary proceedings because the user had uploaded material on a large scale.

It concerns the customer data of a former user of Eweka, who is known by the alias ‘Badfan69’. This uploader has uploaded 9,538 works to Usenet. The headers of the binaries showed that the files were placed via Eweka. In December 2016, Brein requested Eweka to save and provide the uploader’s customer data. The provider did not respond to this, but then closed the user’s account and asked him to contact Brein directly. A month later, Brein again requested Eweka to provide the uploader’s data.

Eweka denied this request, saying it will not do so without a court order. Brein then decided to start summary proceedings against Eweka in order to obtain the data through this means. The provider had argued that it is not up to Eweka as a neutral intermediary to provide the data. Eweka believes that the balance of interests between the importance of the alleged damage suffered by copyright owners and the privacy of the uploader can only be made by the courts.

The judge granted Brein’s claim and obliged Eweka to hand over the data within five days. The judge did not agree with Eweka’s argument and determined, on the basis of criteria from an earlier judgment, that all the conditions for release had been met: there was evidently infringing conduct; there is a real interest in the release of the data in the form of preventing further breaches and there was no less intrusive possibility to retrieve the data. According to the judge, Brein’s interest in protecting the property rights of parties affiliated to the foundation outweighs the uploader’s privacy. Eweka has not put forward any facts or circumstances that could have led to a different opinion.

According to the judge, Eweka could and should have made this assessment herself. By initially refusing to provide the data, Eweka violated a due diligence standard. In doing so, Eweka has committed an unlawful act against Brein. Eweka does not have to pay compensation, but must still provide the data.

Eweka does not have to pass on the times at which the uploader’s IP addresses were used; the provider says it does not have this data and Brein has not refuted that either. The judge also awarded a penalty, on the basis of which Eweka must pay 1000 euros every day with a maximum of 100,000 euros if the sentence is not complied with.

Eweka already lost a similar case in 2016. This also concerned a situation in which Brein wanted to have the identifying data of users and Eweka did not want to provide it. Even then, Eweka terminated the customer relationship and based on that stated that the company no longer had the data and therefore could not hand it over. The judge did not agree and ruled that the data had to be handed over anyway. The provider has not put forward this specific argument in the current case.