In its European filesharing wars, the entertainment industry now targets network operators. A Dutch Court has rejected claims for a generic blockade of The Pirate Bay website.
For several years, the entertainment industry has been combating filesharing via peer to peer networks such as the very popular web site and service "The Pirate Bay". In doing so, it uses special litigation vehicles, such as the BREIN foundation in the Netherlands. Until recently, BREIN's litigation efforts were aimed directly at those responsible for operating or hosting file sharing networks. Now the entertainment industry has turned to network operators and internet access providers to implement blockades of the file sharing web sites.
By his decision rendered on 19 July 2010, the Presiding judge of the court of The Hague rejected the claims of BREIN, which were brought in preliminary injunction proceedings (the well known Dutch "kort geding" proceedings). At the core of the decision is the finding that pursuant to the Enforcement Directive (European Directive 2004/48/EC) an injunction can indeed be obtained against "innocent" third parties such as network and internet access providers, if their services are used in the course of an infringement of intellectual property rights. However, the Court held that this applies in specific and individualised cases of infringement and not as a generic measure to block access to filesharing (e.g. bittorrent) websites for all of Ziggo's 1.5 million internet subscribers.
BREIN started the preliminary injunction proceedings against Ziggo in connection with the website The Pirate Bay. BREIN demanded that Ziggo block the access for all of its subscribers to all websites of The Pirate Bay via which people can, inter alia, exchange music, films and games by way of torrents (peer-2-peer file sharing). BREIN had already succeeded in obtaining a court order against The Pirate Bay to have them remove any unlawful torrents, but the service remained very active and enforcement efforts had no result.
Arguing that it had no other options, BREIN demanded that the largest Dutch broadband internet provider Ziggo implement blockades in its network (on the basis of a list of IP addresses and domain names), to prevent 1,5 million Ziggo subscribers from having access to the web site The Pirate Bay.
In it's defence, Ziggo stressed its position as a "mere conduit" access provider, having no contractual relationship with the Pirate Bay web site.
It argued that the case concerned the alleged infringement of intellectual property rights by Ziggo's subscribers. Ziggo argued that in this case, the possibility of an injunction against it as a party providing "intermediate servcies" is not available. Ziggo took the position that the relevant legal provisions, implemented pursuant to the Enforcement Directive, would only apply in specific and individualised cases of infringement. Conversely, the possibility to order intermediate services providers to cease their services would not be available as a generic measure, where it is clear that the large majority of Ziggo subscribers are not involved in file sharing (and it also cannot be said that the only purpose of a visit to The Pirate Bay is to engage in illegal activity).
Ziggo also argued that the requested measures would not be effective as these could easily be circumvented and that also for this reason, the requested blockade was disproportionate.
BREIN based its claims on Article 26d of the Dutch Copyright Act ("DCA") and Article 15e of the Neighbouring Rights Act ("NRA") and in the alternative, on the grounds that Ziggo committed an act of tort by not blocking access to the file sharing website. The relevant provisions in the DCA and NRA are based on Article 11 of the Enforcement Directive and provide that a rights owner can bring a separate action against an intermediary, if his services are used in the course of an infringement of intellectual property rights.
The interim relief judge found that such a separate action against an internet service provider could indeed be possible in a case like this, notwithstanding the liability regime for ISP's as laid down in the Dutch Civil Code (article 6:169c DCC, i.e. the implementation of the E-commerce Directive). However, the judge also held that it is necessary for the granting of an injunction as requested by BREIN, that it is established that the third party in question has indeed infringed the rights concerned by making use of Ziggo's services. According to the judge, the Articles 26d and 15e, interpreted in light of the Enforcement Directive, should only be used to end specific and identifiable infringements. It is only in those cases that it may be determined with the required degree of certainty that there is indeed an infringement and that the requested injunction is proportionate. Since for the vast majority of Ziggo's subscribers this could not be established, BREIN's claims, which regarded all of Ziggo's describers, were denied.
Another reason the judge gave for denying BREIN's claims was that granting these would be contrary to the requirement of subsidiarity. According to the judge, the fact that BREIN could have instigated actions against individual subscribers means that there were other, less far-reaching possibilities to act against the alleged infringement.
It is the first case in the Netherlands in which a court was asked to decide on a rights owners' request to categorically block access to a web site for all the subscribers of a 'mere conduit' access provider.
Several courts in EU countries have already issued decisions in cases between national representatives of rights owners and ISP's via whose networks subscribers can access The Pirate Bay's websites. There is a wide variety in the outcome of these cases, which is, for instance, due to differences in legislation or in the type of proceedings (e.g. criminal law rather than civil law).
The case on the merits is now pending and it will take approximately one year to find out whether the Court follows the approach of the judge in the preliminary injunction proceedings.