EU court upholds strict rules on copyright

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Infamous BitTorrent tracker site The Pirate Bay can be found liable of copyright violations even if it doesn’t host any infringing content, Europe’s top court has ruled.

“Making available and managing an online platform for sharing copyright-protected works, such as ‘The Pirate Bay,’ may constitute an infringement of copyright,” the Court of Justice of the European Union (CJEU) said in its judgment on Wednesday.

“Even if the works in question are placed online by the users of the online sharing platform, the operators of that platform play an essential role in making those works available.”

The ruling isn’t only good news for copyright lawyers, but it also paves the way for ISPs across Europe to choke access to The Pirate Bay, which started life in Sweden in 2003 and has undergone a number of high-profile legal battles—including prison time for its founders, after they were found guilty of being accessories to breaching copyright laws in 2009.

Anti-piracy group Stichting Brein first brought proceedings to courts in the Netherlands eight years ago, when it sought an order to force two of the country’s ISPs—Liberty Global’s Ziggo and XS4ALL—to block the domain names and IP addresses of TPB.

“Everyone is served in blocking illegal sites,” Stichting Brein’s director Tim Kuik said following the ruling. “Illegal sites compete with legal offerings and put all earnings into their own pocket. Manufacturers, producers, and publishers do not see anything about it. It will not be updated and no new content will be created.”

Luxembourg’s judgment, which interpreted the EU Copyright Directive, said:

Whilst it accepts that the works in question are placed online by the users, the court highlights the fact that the operators of the platform play an essential role in making those works available. In that context, the court notes that the operators of the platform index the torrent files so that the works to which those files refer can be easily located and downloaded by users.
‘The Pirate Bay’ also offers—in addition to a search engine—categories based on the type of the works, their genre, or their popularity. Furthermore, the operators delete obsolete or faulty torrent files and actively filter some content.

The court also highlights that the protected works in question are in fact communicated to a public.

Five years ago, the UK’s big name ISPs were ordered by the High Court to cut off access to The Pirate Bay site. And since then, many other piracy sites have similarly been subjected to legal blockades.

The CJEU’s ruling appears to be suggesting that TPB operators offer functions that go beyond a search engine such as Google. Observers have already been wondering if the judgment will spill over into areas where sites might fall under the court’s definition, which states: “the making available and management of an online sharing platform must be considered to be an act of communication for the purposes of the directive.” But they needn’t be overly concerned.

Internet lawyer Graham Smith, in a joint blog post with Will Smith at Bird & Bird, said:

This decision will be welcomed by rights holders as it appears to further broaden the scope of the communication to the public right in the online environment and to be consistent with the broader policy aims of the European Commission in seeking to crack down on online infringement and to protect creative industries.

In Europe, the likes of Facebook and YouTube can fall back on Article 15 of the E-Commerce Directive, which states that providers acting as a “mere conduit,” “caching,” or “hosting” service aren’t obliged “to monitor the information they transmit or store.” The law also makes it clear that there is no “general obligation actively to seek facts or circumstances indicating illegal activity.”

As Smith & Smith of Bird & Bird put it: “That protection operates as an independent overlay above underlying substantive rights such as copyright, so will continue to apply regardless.”