In the name of the law! Computer crime in the Netherlands (in Security > Hacking @ iusmentis.com)
As of 1993, the Computer Crime Act (“Wet Computercriminaliteit”) is in force in the Kingdom of the Netherlands. This law contains a number of provisions regarding various types of computer-related offenses, mainly various types of “hacking” (unauthorized entry in a computer system or destruction of data). Additionally, because of this law, the Dutch Copyright Act now contains a number of provisions specifically aimed at criminal copyright infringement using computers.
Disturbance of computer peace
The classic image of a “hacker” is someone who manages to get access to a heavily secured FBI or Defense computer system from his bedroom. The Act made this an offense in 1993. Someone who intentionally and unlawfully gains access to a protected computer system by a breaking through a security measure can be sentenced to at most six months in prison. If this person also copies information from that computer, the sentence can be increased to at most four years. An important requirement is that the computer system is secured in some way. Copying information by requesting web pages from a server is not a criminal act. However, guessing a password or cracking or subverting the program that controls access to the system is considered to be “breaking through a security measure”, and entering a computer system in this fashion this is an offense.
Another well-known trick is known as “phone phreaking”, using special devices or computer programs to make free calls, or to watch pay-per-view television stations like Canal+. This is also an offense with a three-year penalty.
Destruction of data
Next to burglary, theft is one of the most common types of crime in the real world. Still, the law does not contain any provisions on “data theft”. Mainly this is due to technical reasons: data in a computer system cannot be regarded as “chattel”, as they cannot be taken away, and without taking away there can be no theft. Usually on a computer system the burger will copy data to his own system so he can use it himself. The original owner of the data still has access to them. All he has lost is the exclusive control over the data.
Article 350a of the Dutch Penal Code makes it an offense to unlawfully modify, erase or render unusable or inaccessible any data in a computer system (with a two-year sentence). Releasing a virus or other program that can cause damage on someone else’s system may result in a four-year penalty.
Programs like Back Orifice are a totally different story. A person who installs the BO server on someone else’s computer, subsequently has complete access to that other’s Windows computer. He can now read or modify all data files, execute programs, reboot the system or format the hard drive. Is this illegal? As long as no data are modified or erased (i.e. the BO-user is only looking around) this article 350a does not apply. And when the “victim” has installed the server himself (for example because he received it in an innocent looking e-mail, or did not pay attention during a chat session), no security measure was broken, and so it cannot be disturbance of computer peace either.
Liability
At the time of writing of this article (October 1999) Internet providers are considered to be liable for the actions of their users. Most providers will therefore immediately remove infringing or illegal materials from their servers if they receive a complaint. A new version of the Computer Crime Act is under discussion, which should offer providers the same level of protection as printers or publishers presently have. This would make them not liable if they cooperate with the investigation and are able to identify the user who published the material in question. It might take a while until this law enters into force.
Copyright
Copyright infringement is another matter entirely. According to the Dutch Copyright Act (Auteurswet 1912) it is not permitted to distribute a copyrighted work without permission of the maker. Doing so intentionally is a crime (article 31 of the Copyright Act). The Computer Crime Act contains several specific provisions regarding copyright infringement, which ended up in the Copyright Act.
From the earliest date on computer users have been making copies of copyrighted programs, usually because of the high prices for official versions. In the 1980s WordPerfect was the most commonly used word processor in the Netherlands; the company estimated that for every legitimate specimen there were about three or four illegitimate specimens in use.
To put an end to this, many software developers included security measures in their programs. Without the original manual or disk (later CD-ROM) the program would not be usable. Within a short period of time many programs are available to remove these restrictions or to render them unusable. Distributing or keeping such a program for pursuit of gain is an offense: article 32a of the Dutch Copyright Act imposes a maximum sentence of six months in prison.
The popular act of distributing music in MP3 format is also not permitted. No change to the law was necessary; a song is protected by copyright regardless of the form in which it is laid down, whether that is a CD, an audiocassette, an LP or an MP3-file. Music piracy is no new crime either. What is new is that it is now so easy to make copies of music and to distribute them. No CD-pressing plant or copying machine is necessary, a fast computer with cable modem suffices.
The code of law
Government publications cannot be copyrighted. This means that the full text of statutes or verdicts may be copied and distributed freely. As at the time Dutch laws are not available electronically, the Dutch student Pavle Bojkovski founded the well known website Legislation. Information on this website was based on a CD-ROM published by legal publisher SDU/Vermande. This CD-ROM also included commentary, background information and clarifications for laws, such as headlines or footnotes. It was claimed that the resulting text was more than just the laws, and so was copyrighted. In response Bojkovski removed all the extra content and published just the bare laws. The court held that this was not an infringement on the copyright held by SDU/Vermande, despite the fact that the publication was based on their work.
Under normal circumstances taking someone else’s work, editing it in this fashion and publishing the result is not permitted. For example, it is not permitted to copy the content of newspaper articles from the website of a newspaper and to distribute them as your own news service. The newspaper, or the news agencies from which they get the articles, old copyrigh on these articles. However, because statutes are not protected by copyright, in this specific case it was possible to publish the work in this fashion.
Another copyright related program was the subject of a lawsuit by Scientology against amongst others Internet provider XS4All and Dutch writer Karin Spaink. A number of people offered secret Scientology-documents for download on their website, which documents were made available previously in U.S. court cases as evidence. It was held that these articles were made available by the government and so should not be protected by copyright. After this position became untenable, these people switched to rewriting the text and adding comments on relevant passages. After all, it is permitted to cite from other people’s work for purpose of criticism or parody. In the “kort geding” court proceedings (comparable to summary proceedings) this was held permissible.
The outcome was the same in the subsequent “bodemprocedure” court case. However, in this case the judge issued a statement that was considered “dangerous” by many. He remarked that offering a protected work on a website should be seen as distribution of this work, and additionally a hyperlink to a protected work should also be seen as distribution of this work. This would mean that linking to someone else aside is no longer permitted without authorization. The intent of this judgment was probably to forbid linking to illegal copies of works, but the ruling only refers to “protected works” and not just illegal publications of same. Hopefully this will be clarified in appeal.