The Pirate Bay, as a peer-to-peer network that indexes infringing content, is engaging in communications to the public under the Copyright Directive because it is aware of that content and doesn’t take action to make inaccessible, the CJEU held in the litigation between Dutch anti-piracy group BREIN and two ISPs on 14 June.
In the decision, the CJEU explained: “The view must … be taken that the operators of the online sharing platform The Pirate Bay, by making that platform available and managing it, provide their users with access to the works concerned. They can therefore be regarded as playing an essential role in making the works in question available.”
The Supreme Court of the Netherlands, on referring questions to the CJEU for a preliminary ruling in the litigation, also asked whether website blocks are proportional responses to sites such as The Pirate Bay, which do not host infringing content but provide access to third parties, as well as whether they are effective.
But the CJEU declined to answer this question in light of its ruling that The Pirate Bay and other file-sharing websites do commit an act of communication to the public under Article 3(1) of the Copyright Directive.
In his recommendation to the CJEU earlier this year, advocate general Maciej Szpunar reaffirmed the proportionality and effectiveness of website blocks, which are executed once a court grants an injunction compelling ISPs to do so.
“It is not necessary that intellectual property should be absolutely protected, that is to say, that the proposed measure should result in a complete cessation of copyright infringements,” Szpunar explained. “It is sufficient that it should seriously deter internet users from committing such infringements by making infringement difficult.”
“Given the role of websites such as The Pirate Bay in the operation of peer-to-peer networks, there seems to me to be no question that blocking access to such a site would make it difficult or impossible for most users to find the works made available on such a network and therefore to download them in breach of copyright.”