A new year, a new linking case, with Dutch anti-piracy foundation, Stichting Brein, again at the forefront. Yesterday, Advocate General (AG) Szpunar gave his opinion in Stitching Brein v Ziggo BV and another (Case C-610/15) that The Pirate Bay website communicates works to the public and is consequently liable for copyright infringement
This is the first ruling of 2017 on linking and follows closely behind the recent case in December 2016, also involving Stichting Brien, against Filmspeler (see our blog here). (In that case, the AG stated that the sale of a multimedia player, where the seller has installed add-ons containing hyperlinks to websites that held unrestricted and unauthorised access to copyright protected works was unlawful.)
Background to the Dutch case
This is a Dutch referral that has been rumbling on for some years and concerns the notorious website known as The Pirate Bay (TPB). TPB is a BitTorrent peer-to-peer (P2P) file sharing site that lists catalogues of files (such as music and film files) that are shared via trackers. According to Stichting Brein over 90% of the files contain works made available to users without the copyright owners' consent; TPB does not actually host the infringing content itself.
The case began with the Dutch District court ordering Dutch internet service providers (ISPs), Ziggo BV and XS4ALL Internet BV, to block subscribers' access to TPB. However, the Dutch Court of Appeal, overturned that decision on the basis that defendants in the main proceedings, and not TPB, were the originators of the copyright infringements and, that the blocking sought would not be proportionate to the aim pursued (namely the effective protection of copyright).
With TPB once again free to operate in the Netherlands, Stichting Brein then took the case further still to the Netherlands Supreme Court. The Supreme Court took the view that the Court of Appeal had been wrong in its analysis to overturn the blocking order and referred two questions to the CJEU.
In a nutshell, the questions referred to the CJEU were:
Is it a communication to the public when a website operator makes it possible to find files containing copyright-protected works, which are offered for sharing on a P2P network, by indexing the metadata relating to those files and by providing a search engine?
If the answer is no, can an ISP be requested to block access for its users to an indexing site of a P2P network, like TPB?
AG Szpunar in a detailed and carefully considered opinion recommended that the CJEU answer the two referred questions as follows.
The AG concluded that the answer to question 1 should be that it does constitute a "communication to the public" when a website operator makes it possible, by indexing and providing a search engine, to find files containing works protected by copyright, which are offered for sharing on a P2P network, if that operator was aware that the work was made available on the network without the consent of the copyright owner and did not take action in order to make access to that work impossible.
In reaching this conclusion the AG made the following key points:
The InfoSoc Directive (2001/29/EC) does not define "communication to the public" which includes "making available to the public", but earlier case law had considered that there were two requirements: an act of communication and the presence of a public.
He considered that the making available to the public of copyright-protected works took place where those works were shared on a P2P network. The works were made available on the computers of the network users, so any other user could download them. The potential users of an open P2P, such as TPB’s, constituted an undefined and significant number of persons. As the copyright owners had not consented to the sharing of its works, the users of the P2P network were a new public.
He went on to look at who was to be regarded as making the act of communication: the P2P network users or the website operator, such as TPB. The AG concluded that the operators arranged the system which enabled users to access works that were made available by other users; their role could therefore be regarded as necessary.
He emphasised that the website operator must have actual knowledge of the facts, for example, having been expressly alerted by the copyright owner of the illegal nature of the information appearing on the website. The AG said that it would not be appropriate to apply to such a website a presumption of knowledge of the facts similar to that established by the CJEU in the GS Media case (see our blog here) in the case of persons who had posted a hyperlink for profit. Such a presumption would amount to imposing on operators of indexing sites of P2P networks, which normally operate for profit, a general obligation to monitor the indexed content.
He concluded that in a situation like TPB the website operators could be considered to be simultaneously and jointly with the network users, as originating the making available to the public of works that were shared on the network without the copyright owners' consent. This was provided that they were aware of that illegality and did not take action to make access to such works impossible.
The Dutch court had raised this second question in case the answer to the first question was "no". The AG went on to consider the second question in case the CJEU came to a different conclusion on question 1 than he had.
The AG noted that the circumstances envisaged in Article 8(3) of the Infosoc Directive (to which the question related) presupposed the existence of a link between the subject of the injunction and the copyright infringement. A measure blocking a website implied that it had been established that the operator of that website had been held liable for copyright infringement using the services of the intermediary to which the injunction was addressed.
He concluded that Article 8(3) did enable an injunction to be obtained against an ISP ordering it to block access for its users to an indexing site of a P2P network, if the website operator could, under national law, be held liable for copyright infringements committed by users of that network, provided that the measure was proportionate to the significance and seriousness of the copyright infringements committed, which was a matter for the national court to determine.
The AG added that in the TPB's situation, in view of the proportion of illegal content and TPB's behaviour, a blocking injunction would be a proportionate response to the significance and seriousness of the copyright infringements.
Copyright owners will welcome the AG's clear opinion that the activities of notorious website operators like TPB should be classed as a communication to the public and consequently an infringement of copyright. In this regard, his opinion seems consistent with earlier cases on the right of communication and provides a helpful addition to the interpretation of this concept.
As the AG emphasised the situation in this case was substantially different from the Svensson and GS Media cases (see our blogs here and here) which also considered the right to communicate works to the public via the internet. Those cases concerned the secondary communication of works already accessible on the internet by a person providing the online content itself, whereas this case concerned original communication, made on a P2P network.
Although his opinion in relation to the second question on website blocking orders was not strictly necessary, it does suggest that national courts, such as the UK, will be able to continue to grant such orders in appropriate circumstances. (TPB has been the subject of blocking orders in the UK since 2012 - see below, for a quick re-cap.)
Overall, AG Szpunar has provided a sound and sensible opinion providing clear guidance for both copyright owners and ISPs. It remains to be seen whether the CJEU will follow his approach or will surprise us again as it did in the GS Media case.
This ruling coincides with a new educational campaign recently launched in the UK to reduce online piracy, under the name "Get it Right" (for further information see our blog here).
A quick re-cap of The Pirate Bay in the UK
TPB is no stranger to litigation in various jurisdictions, including the UK, and has been the subject of blocking orders since 2012 requiring several UK ISPs to restrict access to the site (see our blog here). In February 2012, in Dramatico Entertainment Ltd and others v BSkyB Ltd and others  EWHC 268 (Ch), the UK High Court ruled that TPB's activities (and those of its users) infringed copyright owned by various record labels (Dramatico, EMI, Sony, Warner Music). The users were copying works and communicating them to the public, while TPB was authorising such infringement and was also jointly liable with the users. In May 2012, various ISPs (Virgin media, BSkyB, TalkTalk) were ordered to block access to TPB's website under section 97A of the Copyright, Designs and Patents Act 1988 (which implements Article 8(3) of the InfoSoc Directive).