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CJEU has ruled that “The Pirate Bay” is liable for copyright infringement.

June 22, 2017

In a landmark preliminary ruling handed down on 14 June 2017, the CJEU judged that the Pirate Bay (PB) can be held liable for copyright infringement despite not storing infringing content on its platform.

The Pirate Bay, as we know, is a peer to peer file sharing platform which does not store content but which provides a search engine that enables users to quickly find the files they wish to download including copyright protected content while also hosting a blog encouraging visitors to upload and make copies of that content.

The request for a preliminary ruling was submitted by the Supreme Court of the Netherlands following an application by the Stichting Brein, a copyright owners association who sought an order to force two Dutch internet service providers (ISP) to block their users access to the PB website. The applicants argued that the PB platform, enabled users to commit wide scale copyright infringement by sharing files containing protected subject matter (mainly music and films) without authorisation of the copyright owners.

Two questions were submitted to the CJEU. The first question was whether or not communication existed between the Pirate Bay platform and its users within the meaning of Article 3(1) of Directive 2001/29 (Article which enables copyright owners to choose the manner in which their works are communicated to the public). The second asked whether or not Article 11 of Directive 2004/48 provided for the possibility of obtaining an injunction against intermediaries who facilitated the copyright infringement of third parties.

The CJEU accepted that the copyrighted works were placed online by the users not by PB and that the works were not stored on their platform. However, it acknowledged that the PB provided a platform which enabled its users to quickly find files that they wish to download and thus facilitated copyright infringement. It also provided access to online blogs and forums encouraging users to search for and download protected works.

The Court accepted that these activities constituted an act of communication between the PB and its users for the purposes of Article 3(1) of Directive 2001/29 and thus constituted copyright infringement.

Since its foundation in 2003, The Pirate Bay has been subjected to raids, blockades and its three founding members fined and jailed. The current management team does not appear to be too worried by the ruling replying that if user access is blocked by one or several ISPs, users will find a way to get around the blockade including using one of hundreds of existing proxies.

Source

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