Europe-wide BitTorrent indexer blockade looms after Pirate Bay blow

Euro Court of Justice decides infamous search engine does infringe copyright

Analysis Europe's highest court has ruled that notorious torrent search engine The Pirate Bay infringes copyright, opening the door for ISPs across the continent to be obliged to block access to it.

The decision is just the latest in a seven-year legal battle between Dutch anti-piracy group Brein and ISPs Ziggo and XS4All, and provides critical legal clarity over how The Pirate Bay is viewed in law.

In legal terms, the European Court of Justice (ECJ) has decided that The Pirate Bay is carrying out an "act of communication" when it links to torrent files.

Even though these files are submitted by its users, and even though the copyrighted material that the torrent files download are not hosted by The Pirate Bay, the site still "plays an essential role in making those works available," said an official statement [PDF] from the court.

The court notes that The Pirate Bay not only offers a search engine for files, but also categorizes them by genre, type and popularity. It also deletes faulty files and actively filters some content. All of which means, in the court's view, that The Pirate Bay is knowingly providing access to copyright-protected work without the permission of the relevant rights holders.

"The operators of The Pirate Bay cannot be unaware that this platform provides access to works published without the consent of the rightholders," the court decided. And it noted that this activity was carried out "with the purpose of obtaining a profit."

While all this may seem obvious to anyone who visits the site, legally the decision puts The Pirate Bay in a very different category: from unwitting hoster of files to copyright infringer. And that status change may be sufficient to require ISPs to block their subscribers from accessing the site.

Back and forth

One of the ISPs at the center of the fight, XS4All, has put out a statement acknowledging that the court has clarified in law whether The Pirate Bay is infringing copyright, but it points out that it still falls to the Dutch Supreme Court to decide whether forcing it to block access to the site is "proportionate" in law.

The legal fight has been lengthy and has swung both ways, putting a spotlight on the complicated legal questions that the internet has thrown up.

Back in July 2010, a Dutch court ruled that Ziggo and XS4All did not have to block The Pirate Bay, arguing that such a block was unjustified and ISPs couldn't be held liable for the actions of their users. It also said that Brein had failed to produce hard evidence for its claims of widespread infringement.

That decision was seemingly backed up by a different court decision that same month in Belgium concerning two other ISPs – Belgacom and Telenet. It again concerned a block to The Pirate Bay and the court ruled against it, saying the block was "disproportionate."

A year later, in October 2011, that latter decision was overruled on appeal and Belgacom and Telenet were ordered to block The Pirate Bay (and its multiple domain names) – something that one advocacy group called a "dangerous precedent" for Belgium and Europe more broadly.

Then, in March 2012, the Dutch Ziggo and XS4All case brought by Brein was also overturned on appeal. A court in The Hague ruled that the ISPs did in fact have to block access and would face a €1,000 (US$1,120)-per-day fine if they failed to do so.

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