​The European Court Of Justice Paves The Way For The Pirate Bay To ...

Copyright law has historically developed in response to technological innovation. For example, in the 1980s developments in digital recording equipment gave consumers the ability to make perfect reproductions of protected works.[1] In the European Economic Community (EEC), this new technology led to an increase in cross-border copyright infringement,[2] and in 1988, the Commission of the European Communities estimated that millions of dollars of earnings had been lost as a result of piracy in the area of sound recordings.[3] This led the European Union to work on unifying copyright law, and in 2001, the the European Parliament and the Council of the European Union passed the Copyright Directive.[4] The Copyright Directive harmonized copyright laws between member states of the European Union with the goal of further developing the European internal market.[5] In many ways, the Directive was a clear response to technological advances which had enabled a new level of copyright infringement.

In the years following the passage of the Copyright Directive, one of the most infamous copyright infringement offenders has been The Pirate Bay. The Pirate Bay is a website that facilitates peer-to-peer file sharing by indexing metadata of content offered by users of the website.[6] Peer-to-peer file sharing occurs on decentralized networks in which individual users host content on their computers, and The Pirate Bay enables users to search this type of network for specific content through a search engine; without a website playing this role, it would be very difficult for most internet users to access content on a peer-to-peer network.[7] The Pirate Bay was created in 2003 in Sweden and quickly attracted attention, gaining 2.5 million users within two years.[8] By 2014, the number of users was estimated to be 50 million worldwide.[9] Part of the website’s notoriety comes from the fact that it has continued to operate despite having been shut down twice (once in 2006 and once in 2014).[10]

Although not all of the content distribution that occurs through The Pirate Bay constitutes copyright infringement, it is estimated that between 90 to 95 percent of the content is protected and shared without the rightsholder's consent.[11] Unsurprisingly, organizations that represent rightsholders such as the Motion Picture Association of America and the Recording Industry Association of America view The Pirate Bay as a major threat to the creative industry.[12] The BREIN Foundation, a Dutch anti-piracy group composed of both Dutch and international content industry figures, is one such organization.[13] Part of the BREIN Foundation’s anti-piracy program is bringing civil litigation in order to foster more protection for rightsholders, and in 2010 it brought a suit against Ziggo BV and XS4ALL Internet BV, two of the largest internet service providers in the Netherlands,[14] with the goal of enjoining the internet service providers to block access to The Pirate Bay.[15]

According to the BREIN Foundation, they had the right to enjoin the internet service providers to block The Pirate Bay under Article 26(d) of the Auteurswet (Netherlands’ Copyright Act), which is a transposition of Article 8(3) of the Copyright Directive.[16] Article 8(3) of the Copyright Directive states that rightsholders must be allowed “to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright.”[17] The BREIN Foundation claimed that Ziggo BV and XS4ALL Internet BV were intermediaries whose services were used by The Pirate Bay to infringe the copyrights of countless content creators.[18] The case was appealed to the Dutch Supreme Court,[19] which submitted two questions of European Union law to the European Court of Justice for clarification:

1. Is there a communication to the public within the meaning of Article 3(1) of the Copyright Directive by the operator of a website, if no protected works are available on that website, but a system exist ... by means of which metadata on protected works which is present on the users’ computers is indexed and categorized for users, so that the users can trace and upload and download the protected works on the basis thereof?2. If the answer to Question 1 is negative, do Article 8(3) of the Copyright Directive and Article 11 of the Enforcement Directive offer any scope for obtaining an injunction against an intermediary as referred to in those provisions, if that intermediary facilitates the infringing acts of third parties in the way referred to in Question 1?[20]

The first question asks whether or not The Pirate Bay is directly infringing the right of content creators to communicate their works to the public despite the fact that it does not directly host any content on its website. The right to authorize or prohibit the communication of works to the public is enshrined in Article 3(1) of the Copyright Directive, and it covers “wireless means, including the making available to the public of their works … [so that they] may access them from a place and at a time individually chosen by them.”[21] The second question is relevant only if the first question is answered negatively, and it asks whether a rightsholder can obtain an injunction against an internet service provider to block access to a website like The Pirate Bay based on the fact that users are committing copyright infringement through the website, even if the website itself is not making a communication to the public.[22]

The European Court of Justice explained that determining whether a party has made a communication to the public involves two elements: “an ‘act of communication’ of a work and the communication of that work to a ‘public.”’[23] For the first element, “the indispensable role played by the [alleged communicator] and the deliberate nature of his intervention” are important criteria for determining if an act of communication has been made; if a party knowingly provides consumers with access to a protected work, and it would be difficult for those consumers to access that work without the party’s help, then that party has made a communication within the meaning of the Copyright Directive.[24] Furthermore, the Court noted that existing case law demonstrates that providing physical links to protected works is considered an act of communication.[25] Based on these factors, the Court found that The Pirate Bay made an intentional act of communication by maintaining a searchable index of protected works; even though the operators of the website did not place the works online, the role that the website played in making the works available to other users was essential, as those users would likely not be able to download the works without the help of the website’s search function.[26] For the second element, “the concept of ‘public’ involves a certain de minimis threshold” and “the cumulative effect of making the works available to potential recipients should be taken into account. … [I]t is necessary to know not only how many persons have access to the same work at the same time, but also how many of them have access to it in succession.”[27] Additionally, the work must be communicated “to a ‘new public’, that is to say, to a public that was not already taken into account by the copyright holders when they authorized the initial communication of their work to the public.”[28] Because of the large number of users of The Pirate Bay and the website operators’ express purpose of promoting illicit sharing of protected works, the Court found that The Pirate Bay had made a communication to a ‘new public.’[29] The Court concluded that The Pirate Bay’s actions constituted an infringement of the right of content creators to communicate their works to the public.[30]

With this ruling, rightsholders in the European Union can now apply for injunctions against internet service providers to have them block The Pirate Bay and other websites that index metadata for the purpose of enabling peer-to-peer file sharing.[31] However, individual courts in member states will need to decide whether forcing internet service providers to block particular websites is a proportional response to the harm done.[32] Still, rightsholder organizations will be able to leverage this decision in future litigation, which will likely translate to The Pirate Bay and similar file-sharing websites being blocked in a greater number of European Union member states.

As copyright law continues to catch up to technology, websites like The Pirate Bay will probably find it more and more difficult to continue to operate. However, new technological developments will likely continue to frustrate rightsholders. Blockchain technology, which is becoming more popular every year, allows users to share files in a decentralized manner.[33] It can also be used to create an index of these files so that users can search for specific content, and unlike websites, blockchains cannot easily be blocked by internet service providers due to their decentralized nature.[34] When metadata indexing websites become infeasible to operate, the next piracy enabling technology will emerge, and copyright law will likely again develop in response.

[1] Office of Technology Assessment, OTA-CIT-422, Foreword to Copyright and Home Copying: Technology Challenges the Law (1989).

[2] Irma Sirvinskaite, Toward Copyright “Europeanification”: European Union Moral Rights, 3 J. Int’l Media & Ent. L. 263, 264 (2010–2011).

[3] Green Paper on Copyright and the Challenge of Technology - Copyright Issues Requiring Immediate Action, COM (88) 172 final 21–24 (June 7, 1988).

[4] 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, 2001 O.J. (L 167) 10 [hereinafter Copyright Directive].

[4] Id. The internal market refers to the market shared by European Union Member States and is characterized by the ‘‘four freedoms’’ (the free movement of goods, capital, services, and labor). The recitals of the Copyright Directive explain that the Directive helps to implement the four freedoms, increases legal certainty, and provides for uniform intellectual property protection across the Union, thus promoting a more unified internal market. The recitals also note that a lack of copyright harmonization would lead to legal inconsistency across the Union which would weaken the internal market.

[6] Opinion of Advocate General Szpunar, Case C-610/15, Stichting Brein v. Ziggo BV, XS4ALL Internet BV, 2017 Celex No. 615CC0610 (Feb. 8, 2017).

[7] Id. ¶¶ 20–27

[8] Christian de Looper, History of The Pirate Bay: Internet Outlaw or Internet File-Sharing Freedom Fighter?, Tech Times (Dec. 7, 2014), http://www.techtimes.com/articles/22362/20141217/history-pirate-bay.htm [https://perma.cc/REY3-YNWK].

[9] How Did The Pirate Bay, the World’s Biggest Illegal Downloading Site, Stay Online for So Long?, Vice Thump (Dec. 12, 2014), https://thump.vice.com/en_au/article/how-did-the-pirate-bay-the-worlds-biggest-illegal-downloading-site-stay-online-for-so-long [https://perma.cc/EL7W-RGDF].

[10] Darrell Etherington, The Pirate Bay Is Back After Nearly Two Months Of Downtime, TechCrunch (Feb. 1, 2015), https://techcrunch.com/2015/02/01/the-pirate-bay-returns/ [https://perma.cc/7TZ7-EVPJ].

[11] Szpunar, supra note 6, ¶ 23.

[12] Greg Sandoval, Pirate Bay on MPAA, RIAA most ‘notorious’ list, CNET (May 19, 2010), https://www.cnet.com/news/pirate-bay-on-mpaa-riaa-most-notorious-list/ [https://perma.cc/86YK-FNTJ].

[13] The BREIN Foundation, BREIN: the art of protecting the creative, https://stichtingbrein.nl/engl... (last visited June 15, 2017) [https://perma.cc/GZM5-XCNL].

[14] Szpunar, supra note 6, ¶ 12.

[15] Zitting blokkeringsactie The Pirate Bay, BREIN (June 29, 2010) https://stichtingbrein.nl/nieuws.php?id=174 [https://perma.cc/Z7AD-SC63] (Neth.).

[16] Auteurswet [Copyright Act], (Act No. 2008, 85) (Neth.).

[17] Copyright Directive, supra note 4.

[18] Zitting blokkeringsactie The Pirate Bay, supra note 15.

[19] Dutch Supreme court: decision by the Court of Appeal regarding the blocking of The Pirate Bay incorrect, BREIN (Nov. 13, 2015), https://stichtingbrein.nl/nieuws.php?id=366 [https://perma.cc/TR84-ZVYV].

[20] Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 18 November 2015 – Stichting Brein, Other parties: Ziggo BV and XS4ALL Internet BV, Case C-610/15, Stichting Brein v. Ziggo BV, XS4ALL Internet BV (Nov. 18, 2015).

[21] Copyright Directive, supra note 4.

[22] Szpunar, supra note 6, ¶ 57.

[23] Case C-610/15, Stichting Brein v. Ziggo BV, XS4ALL Internet BV, 2017 Celex No. 615CJ0610 ¶ 24 (June 14, 2017).

[24] Id. ¶ 26.

[25] Id. ¶¶ 32–33.

[26] Id. ¶¶ 36–37.

[27] Id. ¶ 41.

[28] Id. ¶ 28.

[29] Id. ¶¶ 42–45.

[30] Id. ¶¶ 47–48. Because the first question was answered affirmatively, the Court declined to answer the second question.

[31] Alex Hern, European court of justice rules Pirate Bay is infringing copyright, Guardian (June 15, 2017), https://www.theguardian.com/technology/2017/jun/15/pirate-bay-european-court-of-justice-rules-infringing-copyright-torrent-sites [https://perma.cc/PVS9-FAUR].

[32] Kieren McCarthy, Europe-wide BitTorrent indexer blockade looms after Pirate Bay blow, Register (June 15, 2017), https://www.theregister.co.uk/2017/06/15/europe_bittorrent_pirate_bay_block/ [https://perma.cc/Q473-AA9W]. The principle of proportionality holds that “the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question, it being understood that when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.” See Case C-331/88, The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others, 1990 E.C.R. I-04023 (Nov. 13, 1990). The “principle of proportionality… is one of the general principles of [European Union] law,” meaning that member states must apply the test when resolving cases that involve European Union law. See id. In this instance, the proportionality test would balance the harm done by an infringing website against the harm done by enjoining an internet service provider to block an infringing website. The court applying the proportionality test would likely consider harm to copyright holders, censorship risks, and cost of compliance as relevant factors.

[33] Brian D. Evans, Blockchain Tech Company Sia (Siacoin) Could Disrupt Dropbox and Amazon, Inc.com (June 14, 2017), https://www.inc.com/brian-d-evans/blockchain-tech-company-sia-siacoin-could-disrupt-dropbox-and-amazon.html [https://perma.cc/Q473-AA9W].

[34] For an explanation of blockchain technology and how it may or may not be regulated, see Aaron Wright & Primavera De Filippi, Decentralized Blockchain Technology and the Rise of Lex Crytographia, 1, 12–15, 18–24, 51–52 (Mar. 20, 2015), https://papers.ssrn.com/sol3/p... [https://perma.cc/E5QS-3X8G]. The authors do note that there are measures that governments can take to obstruct blockchain usage, such as not allowing internet service providers to transmit encrypted data; however, this would be much more invasive than blocking a website.