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Europe-wide BitTorrent indexer blockade looms after Pirate Bay blow

Euro Court of Justice decides infamous search engine does infringe copyright

By Kieren McCarthy, 15 Jun 2017

Analysis Europe's highest court has ruled that notorious torrent search engine The Pirate Bay infringes copyright, opening the door for ISPs across the continent to be obliged to block access to it.

The decision is just the latest in a seven-year legal battle between Dutch anti-piracy group Brein and ISPs Ziggo and XS4All, and provides critical legal clarity over how The Pirate Bay is viewed in law.

In legal terms, the European Court of Justice (ECJ) has decided that The Pirate Bay is carrying out an "act of communication" when it links to torrent files.

Even though these files are submitted by its users, and even though the copyrighted material that the torrent files download are not hosted by The Pirate Bay, the site still "plays an essential role in making those works available," said an official statement [PDF] from the court.

The court notes that The Pirate Bay not only offers a search engine for files, but also categorizes them by genre, type and popularity. It also deletes faulty files and actively filters some content. All of which means, in the court's view, that The Pirate Bay is knowingly providing access to copyright-protected work without the permission of the relevant rights holders.

"The operators of The Pirate Bay cannot be unaware that this platform provides access to works published without the consent of the rightholders," the court decided. And it noted that this activity was carried out "with the purpose of obtaining a profit."

While all this may seem obvious to anyone who visits the site, legally the decision puts The Pirate Bay in a very different category: from unwitting hoster of files to copyright infringer. And that status change may be sufficient to require ISPs to block their subscribers from accessing the site.

Back and forth

One of the ISPs at the center of the fight, XS4All, has put out a statement acknowledging that the court has clarified in law whether The Pirate Bay is infringing copyright, but it points out that it still falls to the Dutch Supreme Court to decide whether forcing it to block access to the site is "proportionate" in law.

The legal fight has been lengthy and has swung both ways, putting a spotlight on the complicated legal questions that the internet has thrown up.

Back in July 2010, a Dutch court ruled that Ziggo and XS4All did not have to block The Pirate Bay, arguing that such a block was unjustified and ISPs couldn't be held liable for the actions of their users. It also said that Brein had failed to produce hard evidence for its claims of widespread infringement.

That decision was seemingly backed up by a different court decision that same month in Belgium concerning two other ISPs – Belgacom and Telenet. It again concerned a block to The Pirate Bay and the court ruled against it, saying the block was "disproportionate."

A year later, in October 2011, that latter decision was overruled on appeal and Belgacom and Telenet were ordered to block The Pirate Bay (and its multiple domain names) – something that one advocacy group called a "dangerous precedent" for Belgium and Europe more broadly.

Then, in March 2012, the Dutch Ziggo and XS4All case brought by Brein was also overturned on appeal. A court in The Hague ruled that the ISPs did in fact have to block access and would face a €1,000 (US$1,120)-per-day fine if they failed to do so.

'Blockade is ineffective'

So the ISPs appealed and in January 2014, it flipped again. This time the Court of Appeal in The Hague reversed the ban and argued that the block would not deter users from illegally downloading copyrighted material. The court noted that users simply used other BitTorrent search engines when faced with a block of The Pirate Bay. "The service providers' subscribers in any case mainly use proxies or resort to other torrent sites," the appeals court said. "The blockade is therefore ineffective."

And so Brein appealed that decision to the Dutch Supreme Court, claiming that the decision damaged the legitimate market for online content by protecting illegal competition.

"The purpose of the blocking of The Pirate Bay of course is to decrease the infringements via The Pirate Bay," said Brein's director Tim Kuik. "It is contradictory that the court finds that this goal indeed is achieved, but then still rejects the blocking because users can go to other sites."

In June 2015, the Dutch attorney general, Robert Van Peursem, decided that before the case could be heard by the Supreme Court it was necessary to ask the European Court of Justice if The Pirate Bay was, in law, communicating illegal content to the public.

If it was not breaking the law, Van Peursem asked the ECJ to rule on whether ISPs can be ordered to block The Pirate Bay on other grounds.

And then finally, this week, the ECJ decided that yes, in fact, The Pirate Bay does infringe copyright. And so now the lengthy legal battle will go back to the Dutch Supreme Court to decide whether its ISPs can be forced to block access to the site.

The key part of the ECJ's judgment is this:

The concept of 'communication to the public,' within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as covering, in circumstances such as those at issue in the main proceedings, the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network.

The implications are potentially enormous and are a big win for the rights holders. The decision is likely to hold and so will be applicable across Europe. As such, we can expect to see many more lawsuits from anti-piracy groups against ISPs arguing that they must block not only The Pirate Bay but other similar BitTorrent hosting websites.

In the long, lengthy battle by copyright holders to tame the online beast of copyright infringement, this ECJ ruling may prove to be the turning point. ®

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