The Pirate Bay is a website where its users upload a specific type of file known as „torrent“. Unlike the standard server-client communication, torrents allow clients (users) running a special programme to mutually share content saved on their computers. Thereby, a large amount of content, such as films, programmes, books, computer games and other copyright-protected materials is shared without their authors’ consent. This usually constitutes copyright infringement and often results in extensive damage suffered by authors.
A new light was shed on the issue by the judgement of the Court of Justice of the European Union (CJEU) of 14 July 2017. Stichting Brein, a foundation representing the interests of copyright holders, demanded that internet providers Ziggo BV and XS4ALL Internet BV block the domain names and IP addresses belonging to The Pirate Bay. The CJEU was referred a request for a preliminary ruling by a Dutch court concerning the issue whether, through Pirate Bay, copyright-protected works were communicated to the public within the meaning of Art. 3 (1) of EU Directive 2001/29/EC. This Directive provides essential protection to all copyrights and related rights.
In the request for a preliminary ruling, the Dutch court stated that The Pirate Bay:
- creates and maintains a system in which internet users connect in order to share segments of works saved on their own computers,
- runs a website on which users may upload online torrent files which refer to segments of these works, and
- indexes torrent files uploaded on the website categorising them in such a way that fragments of works may be located and users may download these works (as a whole) onto their own computers.
The CJEU ruled that the above constituted a communication of the work to the public, as the circumstances of the case fall within the scope of Art. 3 (1) of Directive 2001/29 – the work was communicated to the public in such a way that members of the public were able to access the work at an individually selected place and time, irrespective of whether they used that opportunity. The conclusion that The Pirate Bay activities constitute communication to the public is further supported by the fact that a large indeterminate number of people, up to millions according to the information available, is involved in the sharing. The CJEU held in its judgement C-466/12 that providing hyperlinks to copyright-protected works located at another website without any restrictions of access provides direct access to such works. The Pirate Bay allows for a very easy access to links to copyright-protected works. This makes The Pirate Bay a deliberate intermediary in accessing copyright-protected works. The operators of The Pirate Bay actively interfered with the database, as they categorized, deleted and filtered torrents. In addition, indexing the torrents made them easily searchable, facilitated their sharing and enabled their classifica-tion based on type and other criteria. Although the works on the website were shared by the website users, it is apparent that The Pirate Bay operators could not have been unaware of providing access to such works as they actively facilitated access to such works. Furthermore, due to the sheer number of its users, The Pirate Bay generated considerable revenues from advertising.
CJEU therefore ruled that The Pirate Bay is liable for communication of copyright-protected works to the public within the meaning of Art. 3 (1) of Directive 2001/29/EC and that referring to copyright-protected works in such a way is not compliant with applicable legislation.