The crazy EU court case about VPN access to the diary of Anne Frank has three legs. It reads like a reminder that the Netherlands had the highest Jewish death rate in occupied Western Europe, roughly three of every four Dutch Jews murdered. I always think of Amsterdam as the city where Dutch hunted their neighbors for German bounty money, seven and a half guilders a head.
Let’s start with the geography of the case.
The manuscripts were written in Amsterdam. In August 1944 an SD officer and Dutch detectives raided the annex, on a tip whose source was never revealed, and the family went out on the last Westerbork transport to Auschwitz that September. Marvel at the Dutch finding Anne, while saying they can’t find the person who told them where to look. See what I mean about Amsterdam?
Miep Gies saved the pages and gave them to Otto Frank in 1945. Otto willed the manuscripts to the Dutch state at his death, and the Dutch national academy edited them. Yet now the Dutch public is being geo-blocked from its own archive, because a Swiss foundation enforces Dutch copyright against the Dutch institutions that published it. Record scratch. That means the Dutch public are the only people being locked out, while Belgians and Germans read freely. The country of origin of this famous Shoah testimony is the one country where it’s blocked. Because of the Swiss.
Germany sits on the access list. Think about that. Anne Frank died at Bergen-Belsen, and her manuscripts entered the German public domain in 2016. The diary is free to read in the country that murdered her and blocked in the country that turned her in.
Second, have a look at the legal issue.
Anne Frank died in 1945. Seventy years from death means 2016 is when access was opened across most of the EU. The Fonds, however, invokes transitional provisions of the 1912 Auteurswet, confirmed by the rechtbank Amsterdam’s final judgment of 23 December 2015, which keep part of the works protected in the Netherlands until 2037. Old Dutch law gave posthumously published works fifty years from publication, and Article 51 of the amended Act preserved any term still running in 1995. Since her diary manuscript versions only first appeared in the 1986 critical edition, the Swiss say the Dutch public still has to wait another eleven, until 1 January 2037 or the extremist right come to power and burn all the books. The act of preserving and publishing the archive, and then locking it for 92 years after her murder, is a peculiar strategy.
Finally the institutional issue. This is Anne Frank Fonds versus Anne Frank Stichting, the Royal Netherlands Academy, and the research association: the Basel foundation Otto Frank created to spread his daughter’s ideals is suing the Amsterdam institutions that preserve her house and her text. Two of the four parties carry Anne Frank’s name and all four trace back to her father, so a table helps here.
| Party | Seat | Origin | Position in the case |
|---|---|---|---|
| Anne Frank Fonds | Basel | Founded by Otto Frank in 1963, named his universal heir at his death in 1980 | Plaintiff. Holds the copyrights and collects the royalties |
| Anne Frank Stichting | Amsterdam | Established in 1957 with Otto’s help to save the annex from demolition | Defendant. Runs the Anne Frank House |
| Royal Netherlands Academy of Arts and Sciences (KNAW) | Amsterdam | State academy whose Huygens Institute edited the manuscripts Otto willed to the Dutch state | Defendant. Produced the scholarly edition |
| Vereniging voor Onderzoek en Ontsluiting van Historische Teksten | Belgium | Association created to publish the edition from public domain soil | Defendant. Owns annefrankmanuscripten.org |
Fonds and Stichting are nearly the same, a fund and a foundation. The Basel Fonds is the money. The Amsterdam Stichting is the house. Otto Frank built both, then made the Swiss one his heir. The copyrights and royalties went to Basel. The house and the manuscripts stayed in Amsterdam. Two halves of one man’s estate have been burning his money and tarnishing his memory by suing each other since he died.
The feud predates this case. The Fonds loaned the family archive, some 25,000 letters, photographs and documents, to the Stichting in 2007, then demanded it back in 2010 for an exhibition in Frankfurt. In June 2013 the Amsterdam District Court ordered the Stichting to return everything by January 2014. The Fonds accused the Stichting of commercializing Anne’s memory. Basel controls the rights, Amsterdam holds the heritage, and Anne Frank’s estate keeps itself busy by punching itself in the face in Dutch courtrooms.
The association registered its domain in Belgium specifically so Dutch scholars could publish their own national archive from digital exile. The Fonds in 2015 asserted Otto was co-author of the published diary to stretch its control toward 2050. It is the sort of claim that contradicts decades of forensic defense of the diary against Holocaust deniers who allege exactly that.
Anyway, the news now is that Frank just lost to Frank. The Fonds lost in Luxembourg. State of the art geo-blocking counts as an effective technological measure, and a VPN hop by a Dutch reader creates no communication to the public in the Netherlands. When a block fails, liability lands on the publisher, never on the VPN provider. The Hoge Raad must still verify the block qualifies as state of the art.
The Court’s resolution has its own quiet absurdity: the honesty checkbox is not effective because it depends entirely on the user’s willingness to answer honestly, but the geo-block is effective even though everyone concerned knows a VPN defeats it.
Get it?
Effectiveness, the Court says frankly, need not be absolute. Amsterdam didn’t need to turn Anne in, when you think about it. So Dutch access continues, one VPN hop at a time, and the law is satisfied because the barrier performs the function of not achieving its function.