Swiftly following the CJEU decision in Filmspeler (see our blog post), in which the Court found that the selling of multimedia players with add-ons to illegal streaming websites amounted to copyright infringement, the CJEU has confirmed that an indexing site such as the infamous website, The Pirate Bay, can be liable and as a result, internet service providers (ISPs) can be ordered to block those websites (judgment of 14 June 2017, C-610/15 – Stichting Brein v Ziggo and XS4ALL Internet).

Background

The focus of the legal proceedings is the website The Pirate Bay which is in fact not a party directly involved in the dispute. Rather, the Dutch organization Stichting Brein who is fighting against piracy applied for an injunction against two telecom companies in the Netherlands, Ziggo and XS4ALL. Stichting Brein demands that the two ISPs block access to The Pirate Bay website because it infringes copyright.

The Pirate Bay serves as a popular website that enables users to find and download – mainly illegal – content on peer-to-peer file sharing websites. Instead of storing the content on The Pirate Bay, the so-called BitTorrent Index allows the website operator to index the metadata on protected works that is available on peer-to-peer networks by third parties and to categorize the metadata for the users. Consequently, The Pirate Bay operates as a search engine.

Stichting Brein was arguing that The Pirate Bay itself infringes copyright. However the ISPs argued that it is not The Pirate Bay but the actual users that infringe copyright and that they therefore cannot block the website.

The Dutch Supreme Court, the Hoge Raad der Nederlanden, decided to submit this issue to the CJEU and asked it whether The Pirate Bay by using the BitTorrent Index is  “communicating to the public” in the sense of Art. 3 (1) of the Info-Soc Directive 2001/29. If the answer was no, the Dutch court wanted to know whether there is any other scope for obtaining an injunction against ISPs in that situation.

CJEU judgment: The Pirate Bay is communicating to the public

The European Court of Justice held there is a “communication to the public” by The Pirate Bay and therefore did not respond to the second question, just as the Advocate General suggested in his opinion published on 8 February 2017 (see our blog post). The judges argue that under settled case law, the term “communication to the public” also covers the making available and management of a sharing platform by means of indexation of metadata to protected works.

Even though, the users of The Pirate Bay themselves make protected works available to the public, the CJEU highlights the essential role of The Pirate Bay. The Pirate Bay acts with full knowledge of the relevant facts and facilitates the localization and sharing of protected works by indexing them. Without The Pirate Bay, the sharing of the protected works would at least be more complex. Additionally, The Pirate Bay’s operator classifies the works under categories such as the genre, deletes obsolete or faulty torrent files and actively filters some content.

Furthermore, the communication also addressed a new public. The Pirate Bay has been used by several dozens of millions; therefore the communication certainly addresses an indeterminate number of potential recipients and involves a large number of persons. The communication also addresses a “new” public since – just as in case of hyperlinking – the public is considered “new” if the public was not taken into account by the copyright holders when they authorized the initial communication. The Pirate Bay, however, had knowledge of the circumstances that surrounded protected works being published without the right holder’s consent. The Court highlights that The Pirate Bay is carried out for profit but it does not establish a presumption of knowledge like in the case of GS Media.

Comment

The Pirate Bay website has been blocked in the UK since 2013 following successful action by the record industry in the UK against UK ISPs to block users’ access to The Pirate Bay in the UK. However, this decision confirms at EU level what has already been decided in the UK: that it is not only the users of P2P file-sharing websites that are infringing copyright but also the operators of such websites.

Consequently, it is open to rights holders to obtain blocking injunctions against ISPs in relation to indexing websites of this kind. Blocking injunctions are a popular method of tackling piracy in the UK and it will be interesting to see whether, following this decision, there will now be an increase in rights holders seeking to block P2P websites in the rest of Europe.