The Pirate Bay and Inducement in EU Copyright – AG’s Opinion in C-610/15 Stichting Brein

The Pirate Bay is an online index of torrents which the users can access to search and obtain files downloadable through BitTorrent clients. The operators were subject to criminal and civil proceedings in Sweden in 2009 and the site remains controversial and blocked in some jurisdictions.

The case concerns a Dutch foundation for the protection of intellectual property rights – Stichting Brein – and two main Dutch Internet providers. Stichting Brein applied to courts under Article 8(3) of Directive 2001/29 asking them to order the two ISP providers to block access to The Pirate Bay, arguing that The Pirate Bay website is used primarily for large-scale copyright infringement.

In November 2015 the Dutch Hoge Raad referred the following question to the CJEU:

Is there a communication to the public within the meaning of Article 3(1) of the Copyright Directive 1 by the operator of a website, if no protected works are available on that website, but a system exist … by means of which metadata on protected works which is present on the users’ computers is indexed and categorised for users, so that the users can trace and upload and download the protected works on the basis thereof?

If the answer to Question (1) is negative:

Do Article 8(3) of the Copyright Directive and Article 11 of the Enforcement Directive 2 offer any scope for obtaining an injunction against an intermediary as referred to in those provisions, if that intermediary facilitates the infringing acts of third parties in the way referred to in Question 1?

 

The Hoge Raad is essentially asking about liability of operators of P2P indexing sites for copyright infringements ensuing from the use of these sites. Although a casual reader might first think of the limitation of liability for intermediaries which both the EU and US laws provide, the case concerns not providers as intermediaries but providers as primary infringers. In other words, the question is not about whether the ISPs can be insulated from liability for somebody else’s actions1 but whether the site indexing these torrents itself is participating in the infringement.

In the United States, the Supreme Court addressed this issue in the well-publicised 2005 MGM v Grokster case, where it ruled that a service which induces infringement cannot shield itself from copyright infringement claims2. A service which does have substantial non-infringing uses and does not induce, however, could. European law is not unison on the substantive aspects of inducement or indirect infringement (with various Member States’s law applying somewhat different standards) but it is on the ability to use generic injunctive relief. Such relief is allowed under Article 8 of the Copyright Directive and Section 4 of the Copyright Enforcement Directive. In the 2010 Scarlet Extended and Sabam cases, though, the CJEU ruled that generic indiscriminate filtering injunctions were not allowed under EU law but did not exclude targeted filtering.3

The Stichting Brein case is interesting for two related yet different reasons. The first question referred is asking if the operators (The Pirate Bay) themselves are the originators of the infringement. In other words, this question is not whether the operator could avail itself of the E-Commerce Directive ISP liability insulation but whether the operator is one of the perpetrators. In order to answer that, the Court has to look into whether the operator (indexer) is making the works available or not (Article 3 of the Copyright Directive). The second question asks if, in the case where they are not perpetrators, an injunction could still be made against them ordering them to block the content which the indexer makes available. The first question is, therefore, essentially about The Pirate Bay while the second targets the ISPs.

In answering the first question, the AG Szpunar emphasises that operators of The Pirate Bay are merely indexing the content and not actually putting it online for downloading4. On the other hand, it is equally clear that the works would either be unavailable or very difficult to obtain had it not been for The Pirate Bay’s intermediation.5 For that role to be fulfilled, the operator must have actual knowledge of the infringement.6 In light of that, the AG answers the first question as follows:

The answer to the first question referred for a preliminary ruling should therefore be that the fact that the operator of a website makes it possible, by indexing them and providing a search engine, to find files containing works protected by copyright which are offered for sharing on a peer-to-peer network, constitutes a communication to the public within the meaning of Article 3(1) of Directive 2001/29, if that operator is aware of the fact that a work is made available on the network without the consent of the copyright holders and does not take action in order to make access to that work impossible.

This result is neither surprising nor inconsistent with the Court’s previous case law nor with what has hitherto been said in courts in the EU7 or in the United States. In fact, using different legal concepts and a somewhat different language, AG Szpunar reached the result which is, in substance, in line with the US Supreme Court’s MGM Grokster decision.

The second question is, in essence, about obtaining a blocking injunction through Article 8(3) of the Copyright Directive of a service which does not communicate to the public. Since the AG suggests an affirmative answer to the first question (i.e. that The Pirate Bay is an infringer), the available injunctions are somewhat wider and there would no need to use Article 8(3), which is specifically targeting ISPs.8 The CJEU had already said in UPC Telekabel Wien that Article 8(3) allows injunctions againstinfringing operators where the order “does not specify the measures which [the] access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures”. In the AG’s opinion, however, this only covers the infringing operators which The Pirate Bay may, at this stage, not be. Article 8(3) presupposes a link between subject of the injunction and a direct copyright infringement.9 In addition to that, it is also necessary that such an injunction does not violate fundamental rights.10 Crucially, however, if the infringement is only indirect, it falls under national law, since indirect copyright infringements have not been harmonised at EU level. The AG, therefore, leaves the matter to national courts, suggesting that Article 8(3) allows injunctions

against an intermediary ordering it to block access for its users to an indexing site of a peer-to-peer network, if the operator of that site can, under national law, be held liable for copyright infringements committed by users of that network, provided that measure is proportionate to the significance and seriousness of the copyright infringements committed, which is a matter for the national court to determine.

This part of the Opinion is also not particularly controversial since it has long been clear not only that injunctive relief in national law is available but also what the outer EU boundaries of such relief might be. The only change that this Opinion brings, should it be adopted, is to clarify the limits of Article 8(3) in cases where it is not expressly clear that the indexing website is itself infringing.

Overall, the case brings the EU law one step closer to the American position and provides extra clarity for what has long already been the practice in national courts. After this case, it becomes clear that indexing services, such as The Pirate Bay, might very well be considered to be primary infringers, just as the Swedish court originally held in 2009.

  1. Nor about whether the users posted illegal torrent links – presumably they had.
  2. Grokster had marketed itself openly as the successor of the recently shut down Napster service.
  3. See UPC Telekabel Wien CJEU case here.
  4. Paragraph 51 of the Opinion.
  5. Paragraph 50.
  6. Paragraph 52.
  7. For Swedish case see http://www.stockholmstingsratt.se/Om-Sveriges-Domstolar/Sveriges-Domstolars-pressrum/Nyhetsarkiv/2009/Fallande-dom-i-det-sk-Pirate-Bay-malet/
  8. He is answering the question, anyway, on the assumption that the Court might not agree with him on the first question.
  9. Paragraph 64.
  10. Paragraphs 71-83.