A Dutch court’s ruling in the Sumotorrent case established a principle that courts in multiple jurisdictions have increasingly embraced: an internet service provider or web host that receives actual notice of copyright infringement and refuses to act cannot hide behind safe harbor provisions. When XS Networks, the Dutch web host for BitTorrent indexing site Sumotorrent, was found liable by The Hague for facilitating copyright infringement after refusing to terminate Sumotorrent’s account despite clear knowledge of the ongoing infringement, the decision sent a clear signal to the hosting industry.
The case was filed by BREIN, the anti-piracy arm of the Dutch recording and film industries. BREIN alleged that XS Networks knew that its client, Sumotorrent, was operating a site that indexed torrent files linking to copyrighted music and film content, and that XS Networks had been notified of this infringement and nonetheless declined to terminate Sumotorrent’s hosting account.
The Hague found XS Networks liable for contributory copyright infringement. The court’s reasoning was straightforward: a host that receives specific, credible notice of infringement and takes no action to stop it loses the protection that safe harbor provisions are designed to provide. Willful blindness in the face of known infringement is not a defense.
Under U.S. copyright law, contributory infringement occurs when a party, with knowledge of infringing activity, induces, causes, or materially contributes to the infringing conduct of another. The foundational case is Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), which held that the sale of copying equipment is not contributory infringement if the equipment is capable of substantial non-infringing use. Grokster refined this by establishing that active inducement of infringement creates liability regardless of the technology’s non-infringing uses.
For service providers and hosts, the DMCA safe harbor under 17 U.S.C. § 512 provides conditional immunity from secondary copyright liability. The safe harbor requires, among other things, that the service provider:
A host that receives specific takedown notices identifying infringing material, or that has actual knowledge of systematic infringement on its network, and does nothing, loses the safe harbor protection. This is precisely the situation The Hague found in the XS Networks case.
The lesson of Sumotorrent and its American counterparts is that maintaining a credible, responsive takedown process is not optional for hosting providers. A host that advertises an indifferent stance toward copyright infringement, ignores takedown notices, or actively signals to infringing users that it will not cooperate with rights holders faces substantial liability.
In practice, hosting providers should maintain a designated copyright agent registered with the Copyright Office, publish a clear DMCA takedown policy, respond expeditiously to valid notices, and implement a repeat infringer termination policy. Failure to implement a repeat infringer policy, in particular, has been held to defeat safe harbor protection in U.S. courts. See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007).
The Sumotorrent ruling had a predictable limitation: by the time BREIN prevailed in court, Sumotorrent had already moved its operations to servers in Ukraine, placing it outside the Dutch court’s practical enforcement reach. XS Networks itself subsequently closed, leaving BREIN’s damages award largely uncollectable.
This outcome highlights a recurring challenge in internet copyright enforcement: favorable judgments do not automatically translate into meaningful relief when defendants operate across borders or move operations to jurisdictions with limited enforcement cooperation.
Revision Legal’s copyright attorneys advise content owners on enforcing their rights against online infringement and help hosting providers and online platforms develop compliant DMCA procedures. Contact us today to discuss your copyright enforcement or compliance needs.
In the United States, the DMCA safe harbor’s repeat infringer termination requirement is the closest analog to the XS Networks problem. Under 17 U.S.C. § 512(i), a service provider must adopt and reasonably implement a policy that provides for the termination in appropriate circumstances of subscribers who are repeat infringers. Service providers that fail to implement an effective repeat infringer policy are not eligible for DMCA safe harbor protection.
Courts have grappled with what ‘reasonable implementation’ requires. In Ventura Content, Ltd. v. Motherless, Inc., the Ninth Circuit found that a hosting site’s practice of terminating accounts for three DMCA takedown notices in a 60-day period satisfied the repeat infringer requirement. In BMG Rights Management (US) LLC v. Cox Communications, the Fourth Circuit found that Cox Communications lost safe harbor protection because it failed to terminate accounts of known repeat infringers despite having received specific takedown notices identifying them.
The Cox decision had significant financial consequences: Cox was found liable for willful contributory and vicarious copyright infringement and was ordered to pay $1 billion in damages, later reduced on appeal. The lesson for ISPs and hosting providers is that a repeat infringer policy must be real—not just documented on paper but actually implemented in a way that terminates or suspends accounts of identified repeat infringers.
A threshold requirement for any service provider claiming DMCA safe harbor protection is registration of a designated DMCA agent with the U.S. Copyright Office. The registered agent receives formal DMCA takedown notices. Service providers that have not registered an agent cannot claim safe harbor, regardless of how responsive they are to informal infringement complaints.
DMCA agent registration must be renewed every three years. Many smaller hosts and online services have discovered after facing infringement claims that their agent registration had lapsed, defeating their safe harbor defense. Keeping agent registration current is a simple compliance task that can have large legal consequences if neglected.
The XS Networks decision reflects a broader trend in international jurisdictions toward holding infrastructure providers accountable when they receive actual notice of infringement and decline to act. The European Union’s Digital Single Market Directive (Article 17) goes substantially further than U.S. law, imposing upload filtering obligations on large online content sharing services. Under EU law, platforms that profit from user-uploaded content and do not obtain licenses from rights holders are directly liable for infringement absent compliance with the directive’s requirements.
For businesses operating internationally, understanding the variation in secondary liability frameworks across jurisdictions is essential. A content moderation policy and DMCA compliance program that satisfies U.S. law may not satisfy European requirements, and vice versa.
Revision Legal’s copyright attorneys advise both rights holders and service providers on secondary liability exposure, DMCA compliance program design, and international copyright enforcement strategy. Contact us today.
The intersection of copyright law and internet infrastructure liability continues to evolve as platforms grow more sophisticated and rights holders pursue increasingly broad enforcement strategies. Businesses operating hosting services, content delivery networks, or other online infrastructure should maintain current DMCA agent registrations, published takedown policies, and functional repeat infringer procedures. Proactive compliance costs far less than defending litigation after safe harbor protection has been lost. Contact Revision Legal’s copyright attorneys to review your DMCA compliance program today.
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