In a case that at its surface did not seem to have much to do with the legality of downloading music and films, a three-headed court in The Hague has declared that downloading from an illegal source is itself illegal (Dutch). The court baffled observers (Dutch) by failing to specify why it would be illegal, other than referring to a three step European Union test that downloading apparently fails.

The Netherlands has an exemption to copyright that says that copies made for private use are not infringing, regardless of whether the author was paid or not. Originally this law applied at a time when ordinary people could not easily make exact copies, and when negotiating a contract with every author about every copy would have been too much of a burden on all concerned. With the advent of the personal computer and the internet as perfect copying and communication tools this law has come under fire, even though studies show that for instance the average musician suffers no ill consequences from downloading.

In order to pay authors for supposed losses they suffer from private copying, the law allows for authors’ organisations to collect levies from users, for instance by having users pay extra for blank media. These levies are then distributed to the authors. This law suit centered on levies: a rights organization was sued by makers of blank media over the way it calculated the height of levies. One of the questions put to the court was: is downloading a form of private copying? If it is not, then rights organisations have no legal right to raise levies for it. That though for some strange reason was not a conclusion the court was willing to draw. If a law becomes so out of touch with the times that even the professionals don’t know how to apply it anymore, what chances do mere mortals stand?

(The three step test is in Directive 2001/29/EC, paragraph 5: “The [private copying] exceptions and limitations […] shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.”)