Global Intellectual Property
French Court orders the blockade on
The Pirate Bay
France has become the latest of a long list of countries to have blocked access to The Pirate Bay website following a ruling of the Paris Court of
On December 4, 2014, after ten months of summary proceedings initiated
by the SCPP (French collective society representing record producers), the Paris Court of first instance ordered 4 French ISPs (Orange, Bouygues Telecom, Free and SFR) to block access to The Pirate Bay website and
to several mirror sites and proxies (72 domain names in total).
This decision is based on article L. 336-2 of the French Intellectual Property Code (French IPC) which provides that, in case of copyright and related rights infringement occasioned by the content of an online communication service
to the public, right holders can ask courts to order "all appropriate measures to prevent or stop a copyright infringement against any person who may be likely to contribute to such prevention or termination".
This is only the second time that this specific provision of the French IPC
is applied by French courts. Indeed, on November 28, 2013, the same court
had already ordered ISPs to block several video streaming websites for copyright infringement based on the same provision (the “Allostreaming” case). Major search engines had also been ordered to de-list the litigious websites from their search results.
The targeted website was “totally or almost totally dedicated” to copyright infringement
In the "Pirate Bay" ruling, the Court adopted a very similar reasoning to that
of its prior ruling in the Allostreaming case.
The court first ruled that the copyright infringement was sufficiently evidenced by the fact that the litigious websites were "totally or almost totally dedicated to the distribution of works without the consent of their creators”. The Court underlined that the unlawfulness of the Pirate Bay website was well-know,
that it had been recognized several times by foreign courts and that the
Pirate Bay itself openly claims this unlawfulness.
The blockade does not violate any basic freedoms or principle
The court rejected all the arguments raised by the ISPs based on the violation of basic freedoms and principles (such as principle of proportionality, and freedom of trade) and the inefficiency of the ordered measures.
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2 Intellectual Property Client Alert December 2014
As regards the principle of proportionality, the Court ruled in particular that:
the absence of one of the major French ISPs (Numericable, which was involved in the Allostreaming case) is irrelevant since the 4 ISPs involved in the dispute represent 90% of the Internet subscribers;
It is not required to sue the infringer or the hosted service provider first. The blocking injunction can be directly issued against the ISPs.
As regards the possible inefficiency of the ordered measures raised by the ISPs, the Court referred to the ruling of the CJEU, in the Telekabel case (Case C-314/12, dated May 27, 2014), where it was made clear that "it is possible that a means of putting a complete end to the infringements of the intellectual property right does not exist or is not in practice achievable, as a result of which some measures taken might be capable of being circumvented in one way or another" and that the measures must only have "the effect of preventing unauthorized access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter made available to them in breach of that fundamental right".
The scope and limits of the blocking injunction
The court therefore ordered the ISPs to implement, and/or have implemented, within 15 days following the notification of the decision, all appropriate measures to prevent access to the infringing websites by any effective means including by blocking the corresponding domain names. However, the judges did not specify exactly the blocking measures to be enforced by ISPs against the websites at stake. The ISPs can therefore freely chose any appropriate mean in order to block the concerned domain names. As in the Allostreaming case, the blocking injunction has a limited scope: it applies to the websites which are specifically listed in the Court decision in case of re-occurrence of the blocked websites, the claimant will have to go back to court. As in the Allostreaming case, the claimant indeed failed to obtain an automatic proxy-accommodating court order the blocking measures are to last 12 months only the blockade applies to French territory users and French ISPs only. In compliance with the CJEU’s ruling in Telekabel, the court ruled once again that the costs incurred by the measures to be taken were not be supported by the ISPs but by the right holders. Next step: the Court of Appeal?
This ruling is a further step towards the protection of right holders. However, at this stage, such rulings have not been confirmed by a Court of Appeal in France. An appeal is currently pending in the Allostreaming case with strong implications for right holders and ISPs.