The Pirate Bay is blocked in dozens of countries around the world. In most cases, ISPs are ordered to take action after a relatively short legal process.
In the Netherlands, however, pirate site blocking has proven to be a rather cumbersome and slow-moving process, lasting over a decade.
The blocking battle started in 2010 when Dutch anti-piracy group BREIN went to court, demanding that local ISP Ziggo should block The Pirate Bay. The ISP, which was later joined by XS4ALL, fought tooth and nail and used all options at its disposal to prevent a blocking requirement.
Appeals, EU Court, and a Do-over
A Dutch court first issued an order to block The Pirate Bay in 2012, but this order was overturned two years later. Anti-piracy group BREIN then took the matter to the Supreme Court, which subsequently referred the case to the EU Court of Justice, seeking further clarification.
After a careful review of the case, last year the EU Court of Justice decided that The Pirate Bay can indeed be blocked. The top EU court ruled that Pirate Bay’s operators knowingly provide users with a platform to share copyright-infringing links, which violates the EU Copyright Directive.
The EU ruling put the case back with the Dutch Supreme Court for a final say. However, instead of ending the matter, the country’s highest court decided that the case should get a do-over. The Supreme Court sent the case back to the Court of Amsterdam for a fresh look at the matter.
ISPs’ Long List of Defenses Fail
Today the Court of Amsterdam issued its new ruling, which is a clear win for BREIN. Based on existing jurisprudence from the EU Court of Justice as well as local law, it concluded that a Pirate Bay block is warranted.
In its decision, the Court waved away a long list of defenses from the Internet providers. For example, the argument that legal content would also be blocked failed, as the vast majority of The Pirate Bay’s links – 90 to 95% – point to copyright-infringing material. If this changes in the future, subscribers have options to address this in court.
The fact that Pirate Bay users will circumvent the blockades is not seen as a stumbling block either, nor is the argument that pirate streaming services are a bigger problem than torrent sites.
“The streaming phenomenon and its magnitude are irrelevant to the decision in this case, as both parties assume, as mentioned, that TPB is still a well-visited website,” the Court writes.
Other defenses failed as well. These include the alleged violation of the ISPs’ entrepreneurial freedoms, BREIN’s alleged failure to go after the Pirate Bay’s operators, and BREIN’s unauthorized collection of subscribers’ IP-addresses.
Dynamic Blocking Order?
The Court ordered that the two ISPs, Ziggo and XS4ALL, must block The Pirate Bay’s domain and IP-addresses.
BREIN requested a so-called dynamic blocking order, which would mean that new IP-addresses and domain names of TPB and its proxies can be added along the way. Such an order was already in place following a 2017 preliminary injunction.
However, the court didn’t go along with this, which means that BREIN has to file a separate case to reinstate the dynamic blocking order.
The ISPs were also ordered to pay BREIN’s legal costs, which comes down to more than €250,000 for Ziggo and roughly €60,000 for XS4ALL.
What’s Next?
The Pirate Bay has been blocked by Dutch ISPs for several years. This was the result of preliminary ruling which first required the most-used ISPs to take measures while the legal process makes its way through the courts. So for TPB users, not much will change.
Ziggo and XS4ALL have yet to comment on the verdict but are expected to be disappointed.
For BREIN and the copyright holders, however, this first blocking case is a crucial victory. Research has shown that blocking measures are not effective if a single site is blocked, so they are eager to request more pirate site blockades.
BREIN is happy with the outcome and it expects that this will be the end of the legal proceedings. However, if the ISPs see any reason to continue the case, the anti-piracy group is confident that the blocking order will stay in place.
BREIN also intends to ask other ISPs to follow suit. While these are not covered in this proceeding, the anti-piracy group can use the court order to back up their request.
