'Blockade is ineffective'
So the ISPs appealed and in January 2014, it flipped again. This time the Court of Appeal in The Hague reversed the ban and argued that the block would not deter users from illegally downloading copyrighted material. The court noted that users simply used other BitTorrent search engines when faced with a block of The Pirate Bay. "The service providers' subscribers in any case mainly use proxies or resort to other torrent sites," the appeals court said. "The blockade is therefore ineffective."
And so Brein appealed that decision to the Dutch Supreme Court, claiming that the decision damaged the legitimate market for online content by protecting illegal competition.
"The purpose of the blocking of The Pirate Bay of course is to decrease the infringements via The Pirate Bay," said Brein's director Tim Kuik. "It is contradictory that the court finds that this goal indeed is achieved, but then still rejects the blocking because users can go to other sites."
In June 2015, the Dutch attorney general, Robert Van Peursem, decided that before the case could be heard by the Supreme Court it was necessary to ask the European Court of Justice if The Pirate Bay was, in law, communicating illegal content to the public.
If it was not breaking the law, Van Peursem asked the ECJ to rule on whether ISPs can be ordered to block The Pirate Bay on other grounds.
And then finally, this week, the ECJ decided that yes, in fact, The Pirate Bay does infringe copyright. And so now the lengthy legal battle will go back to the Dutch Supreme Court to decide whether its ISPs can be forced to block access to the site.
The key part of the ECJ's judgment is this:
The concept of 'communication to the public,' within the meaning of Article 3(1) of 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, must be interpreted as covering, in circumstances such as those at issue in the main proceedings, the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network.
The implications are potentially enormous and are a big win for the rights holders. The decision is likely to hold and so will be applicable across Europe. As such, we can expect to see many more lawsuits from anti-piracy groups against ISPs arguing that they must block not only The Pirate Bay but other similar BitTorrent hosting websites.
In the long, lengthy battle by copyright holders to tame the online beast of copyright infringement, this ECJ ruling may prove to be the turning point. ®