The CJEU has held that making available and managing a peer-to-peer file-sharing site like ‘The Pirate Bay’ may be copyright infringement. The decision will be welcome news for content owners.

The Pirate Bay (TPB) is one of the most well-known BitTorrent peer-to-peer sites for sharing music and video files. Stichting Brein (SB), an anti-piracy foundation in the Netherlands, sought an order from the Dutch courts that would require two local ISPs, Ziggo and XS4ALL, to block access to TPB, SB alleged that TPB infringed copyright by making copyright protected works available to the public.

The Supreme Court of the Netherlands referred the case to the CJEU. The CJEU was asked to consider:

  1. whether a peer-to-peer file-sharing site like TPB is a 'communication to the public' under Article 3(1) of the EU Copyright Directive (2001/29/EC); and
  2. if not, whether an ISP can be ordered to block access to peer-to-peer file-sharing sites like TPB.

It was not disputed that copyright-protected works were made available to TPB users wherever and whenever they choose. The CJEU found that TPB offers – alongside a search engine – the indexation and categorisation of files, including deleting faulty torrent files and filtering out content, thus playing an essential role in making those works available. The CJEU found that TPB’s: (i) operators must have known that TPB provides access to copyright-protected works without consent; and (ii) activities were carried out with the purpose of obtaining a profit. It was also clear that a large number of Ziggo and XS4ALL users had downloaded media files through TPB.

On the first question, the CJEU held that, although TPB does not directly host any copyright-protected works, TPB 'communicate to the public' and thus infringe copyright: a ruling that will no doubt be welcomed by copyright owners. In the light of the answer to the first question, the CJEU held that there was no need to answer the second question of ISP-blocking orders, something which the UK courts have been doing for a number of years (Dramatico Entertainment Ltd and others v British Sky Broadcasting Ltd and others [2012] EWHC 1152 (Ch)).

The judgment makes clear that, no matter what online platform or technology is used, knowingly making available protected rights may constitute a copyright infringement. This expansion of the communication to the public right will no doubt result in various European rightsholders’ organisations demanding the blocking of TPB and similar peer-to-peer file-sharing sites.

On 14 June 2017 the CJEU handed down its landmark ruling in Stichting Brein v Ziggo BV and XS4ALL Internet BV (C-610/15) (see here).