CJEU Decision In Ziggo – Copyright Infringement: The Pirate Bay ...

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• CJEU decision in Ziggo – Copyright infringement: The Pirate Bay does communicate to the public

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X LinkedIn CJEU decision in Ziggo – Copyright infringement: The Pirate Bay does communicate to the public

Published

Jun 13 2017

Written By

Graham Smith

Of Counsel UK

Insightful advice from one of the UK's leading internet and IT lawyers.

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Practices

• Intellectual Property
• Copyright & related rights

Sectors

• Media, Entertainment and Sport
• Technology & Communications

The CJEU today handed down its judgment in the case of Stichting Brein v Ziggo BV and XS4ALL Internet BV (C-610/15), holding that the making available and management of a website on which user-submitted torrent file links to copyright works are indexed may constitute copyright infringement. Although the protected works were not hosted by the Pirate Bay website (but by its users through a peer-to-peer network), the operators played an essential role in making those works available. They had full knowledge of what they were doing and also checked that works were placed in the appropriate category, deleted obsolete or faulty torrent files and actively filtered some content.

Background

This case concerned the well-known file-sharing website, The Pirate Bay (TPB). TPB is one of the biggest websites for sharing music and video files, much of which is unauthorised.

TPB is an example of a peer-to-peer network based on a BitTorrent protocol. This technology allows users ('peers') to download a media file (for example a film) from multiple other users' computers simultaneously. By downloading the content in fragments the speed of download can be greatly increased. The .torrent files provided by TPB were described in AG Szpunar's opinion as a "treasure map". The files provide a searchable index of content and the location of other peers from which the file fragments may be downloaded. It would theoretically be possible to find files offered for sharing on a peer-to-peer network without a site such as TPB but in reality the role of the website is unavoidable for any ordinary Internet user.

Stichting Brein alleged that TPB infringed copyright by making works available to the public without authorisation and brought an action against two internet service providers seeking an order blocking access to the TPB. The case was referred to the CJEU by the Dutch Supreme Court.

The question for the CJEU was whether there could be a communication to the public in circumstances where TPB did not host any infringing content but instead provided a way for its users to access such content from the computers of other users (i.e. peer-to-peer).

Judgment

The CJEU repeated the now well-established formula in addressing cases involving a communication to the public, noting that the purpose of the InfoSoc Directive is to provide for a high level of protection for authors and that a communication to the public requires both an "act of communication" and a "public".

Regarding the "act of communication" the CJEU noted that, in light of recent case law, any act whereby a user, with full knowledge of the relevant facts, gives access to protected works, is capable of constituting an act of communication.

The CJEU also noted that, although TPB did not host content itself, by making available and managing an online sharing platform, the operators of TPB intervene, in full knowledge of the consequences of their conduct, in order to provide access to protected works. By indexing torrent files TPB allows users to locate these works and share them as part of a peer-to-peer network. TPB therefore performed an essential role in the making available of the works in question and there was an "act of communication".

TPB could not be considered to be making a mere provision of physical facilities for enabling or making a communication. It indexed torrent files in such a way that the works to which they referred could be easily located and downloaded by users. In addition to a search engine, TPB offered an index classifying the works under different categories, based on the type of the works, their genre or their popularity. TPB's operators checked to ensure that a work was in the appropriate category. Operators also deleted obsolete or faulty torrent files and actively filtered some content.

On the question of whether there was a "public", the CJEU noted that a significant proportion of the subscribers of Ziggo and XS4ALL download media files via TPB and that TPB report tens of millions of users on their platform. The act of communication is therefore at least to all of these users who were sufficient to amount to a "public".

The CJEU observed that the operators of TPB could not have been unaware that their platform gives access to works published without authorisation. This was clear from the facts of the case. First TPB had been informed of such, and secondly comments from TPB's operators on blogs and forums on the site described the purpose to be that of making protected works available. Because a very large part of the files on TPB referred to works published without authorisation it was held that there was a communication to users who had not been taken into account by the rights holders and therefore they were a "new public" (required following Svensson).

The CJEU therefore held that TPB does carry out a communication to the public.

Comment

This decision is the latest in a long series of decisions regarding the communication to the public right. As with the decision in Filmspeler, it is clear from the judgment that any kind of knowing making available of a work can be an infringing communication, regardless of technology used.

The CJEU again emphasised the importance of the knowledge of the communicating party in establishing whether there was an "act of communication", as it did in GS Media (reported here). However in GS Media the question was the liability of the creator of the link, not of a platform hosting links submitted by users. In Ziggo the CJEU stopped short of introducing the (controversial) presumption of knowledge where the activity was carried out for profit (as it did in GS Media). Such a presumption could have been seen as conflicting with the prohibition on imposing a general monitoring obligation on platforms under the E-Commerce Directive.

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.

Platforms will be studying the implications of the judgment. However it is important to note that the judgment does not affect the liability protection provided by the E-Commerce Directive for hosts, conduits and caches. That protection operates as an independent overlay above underlying substantive rights such as copyright, so will continue to apply regardless.

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