The Pirate Bay is a BitTorrent online sharing platform which provides to internet users indexed links in order to localise protected works and to download them, without any hosted files on the platform. Thus, the exchange of files is realized directly between the internet users and not through the operators.
Considering that this practice infringes author's rights owners, Stichting Brein (a Dutch foundation which safeguards the interest of author's rights) issued proceedings in the Dutch jurisdiction and requested that two service providers, Ziggo BV and XS4ALL Internet BV, be ordered to block the domain name and IP addresses of the online sharing platform.
The first instance court upheld Stichting Brein's requests but these were rejected on appeal. The foundation brought the case to the national Supreme Court which decided to stay the proceedings and to obtain a preliminary ruling from the Court of Justice of the European Union (CJEU).
The main question lied in determining whether or not the platform's operators "communicate to the public" protected works within the meaning of article 3 of Directive 2001/29/CE of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
By a judgement dated 14 June, the CJEU responded in the affirmative and ruled in favour of Stichting Brein. It considered that "without the aforementioned operators making such a platform available and managing it, the works could not be shared by the users or, at the very least, sharing them on the internet would prove to be more complex". The CJEU took into account the significant role played by the operators and insisted that they acted knowingly.
In France, a court decision rendered on 4 December 2014 by the first instance Court of Paris had already ordered four ISPs (Bouygues Telecom, Free, Orange and SFR) to block access to several domain names pointing to The Pirate Bay platform.
The CJEU judgment should have an important impact because many platforms deliberately allow internet users to access protected works and they will probably not be able to decline their liability as easily as in the past.
Juris initiative,Anne-Solène Gay,Behring,Judgement dated 14 June 2017,Court of Justice of the European Union,Directive 2001/29/CE of the European Parliament and of the Council of 22 May 2001– Directive 2001/29/CE,CJEU,The Pirate Bay,Online sharing platform,Stichting Brein