The cases that deal with the meaning of “communication to the public” continue: in a current reference for a preliminary ruling, the European Court of Justice (CJEU) will have to decide whether the operators of websites that index content available on peer-to-peer (P2P) networks, such as The Pirate Bay, infringe copyright when there is no actual content on the website. On 8 February 2017, the Advocate General advised the CJEU to find copyright infringement by indexing websites but only where they have actual knowledge of the illegality and take no action (C‑610/15).

Background

The Pirate Bay is one of the most popular websites for file-sharing and has been founded by the Swedish anti-copyright organization Piratbyrån. What makes the website special is the so-called BitTorrent Index. It means that on The Pirate Bay, the user does not find actual content but the website serves as a search engine for peer-to-peer file-sharing. The website indexes the metadata on protected works which are present on a peer-to-peer file sharing network without the right holder’s consent and it categorizes the metadata for the user. This technology enables the user to find and download content.

However, The Pirate Bay is not directly involved in the legal dispute. The Dutch organization Stichting Brein, whose primary goal is to fight piracy, has applied for an injunction against the two biggest telecom companies in the Netherlands (Ziggo and XS4ALL). Stichting Brein is claiming that as access providers they are obliged to block access by their users to The Pirate Bay.

In order to decide on this matter, the Hoge Raad der Nederlanden (Netherlands Supreme Court) submitted the central question to the CJEU: Whether the search engine technology used by indexing websites such as The Pirate Bay constitutes a “communication to the public” in the sense of Art. 3 (1) of the Info-Soc Directive (2001/29). If the answer is no, do Article 8 (3) of Directive 2001/29 and Article 11 of Directive 2004/48 offer any scope for obtaining an injunction against those intermediaries?

Opinion by the Advocate General Szpunar

The Advocate General Maciej Szpunar recommends the CJEU finds copyright infringement by The Pirate Bay. He states that the operator of a website like The Pirate Bay, by making it possible to find copyright protected files offered on peer-to-peer networks, does “communicate to the public” if (1) he is aware of the fact that the works are made available on the network without the consent of the copyright holders, and if (2) he does not take action in order to make access to that work impossible. The Advocate General suggests that the role of those websites can be considered a deliberate intervention that is “necessary” and “crucial” for the users to infringe copyright, which meets the criteria laid down in the earlier CJEU judgment in GS Media (C-160/15) (see our blog post on GS Media). Szpunar also emphasizes that a presumption of knowledge like in GS Media when the linking person is acting for profit is not appropriate in this case. Operators of indexing websites are usually operating for profit and a general obligation to monitor all indexed content would be unreasonable.

If the CJEU does not follow him in finding a “communication to the public“, Szpunar suggests interpreting Art. 8 (3) of the Info-Soc Directive as permitting an injunction to be obtained against an intermediary (e.g. Ziggo and XS4ALL) ordering it to block access for its users to an indexing site of a peer-to-peer network, if the operator of that site can, under national law, be held liable for copyright infringements committed by users of that network. However, the measure must be proportionate to the significance and seriousness of the copyright infringements committed but this is a matter for the national court to determine.

Comment

Szpunar´s opinion contains a good summary of the previous judgments by the CJEU regarding the interpretation of the “communication to the public“. Right holders will be pleased that Szpunar advocates a finding of copyright infringement by indexing sites. There has been a long-running battle by right holders to bring down The Pirate Bay and other similar websites. There may be disappointment that Szpunar considers that actual knowledge is required (and not a presumption of knowledge where the website is profit-making). However, if followed by the CJEU, it would mean that right holders can put websites such as The Pirate Bay on notice of copyright infringement and if the operator takes no action, that operator will be liable. This will be seen as a good result in the fight against piracy.