In 2014, The Court of The Hague handed down its decision in a long running case which had previously forced two Dutch ISPs, Ziggo and XS4ALL, to block The Pirate Bay.
The Court ruled against local anti-piracy outfit BREIN, concluding that the blockade was ineffective and restricted the ISPs’ entrepreneurial freedoms.
The Pirate Bay was unblocked by all local ISPs while BREIN 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, the Court of Justice today ruled that The Pirate Bay can indeed be blocked.
While the operators don’t share anything themselves, they knowingly provide users with a platform to share copyright-infringing links. This can be seen as “an act of communication” under the EU Copyright Directive, the Court concludes.
“Whilst it accepts that the works in question are placed online by the users, the Court highlights the fact that the operators of the platform play an essential role in making those works available,” the Court explains in a press release (pdf).
According to the ruling, The Pirate Bay indexes torrents in a way that makes it easy for users to find infringing content while the site makes a profit. The Pirate Bay is aware of the infringements, and although moderators sometimes remove “faulty” torrents, infringing links remain online.
“In addition, the same operators expressly display, on blogs and forums accessible on that platform, their intention of making protected works available to users, and encourage the latter to make copies of those works,” the Court writes.
The ruling means that there are no major obstacles for the Dutch Supreme Court to issue an ISP blockade, but a final decision in the underlying case will likely take a few more months.
A decision at the European level is important, as it may also affect court orders in other countries where The Pirate Bay and other torrent sites are already blocked, including Austria, Belgium, Finland, Italy, and its home turf Sweden.
Despite the negative outcome, the Pirate Bay team is not overly worried.
“Copyright holders will remain stubborn and fight to hold onto a dying model. Clueless and corrupt law makers will put corporate interests before the public’s. Their combined jackassery is what keeps TPB alive,” TPB supermod plc365 tells TorrentFreak.
“The reality is that regardless of the ruling, nothing substantial will change. Maybe more ISPs will block TPB. More people will use one of the hundreds of existing proxies, and even more new ones will be created as a result.”
Pirate Bay moderator “Xe” notes that while it’s an extra barrier to access the site, blockades will eventually help people to get around censorship efforts, which are not restricted to TPB.
“They’re an issue for everyone in the sense that they’re an obstacle which has to be overcome. But learning how to work around them isn’t hard and knowing how to work around them is becoming a core skill for everyone who uses the Internet.
“Blockades are not a major issue for the site in the sense that they’re nothing new: we’ve long since adapted to them. We serve the needs of millions of people every day in spite of them,” Xe adds.
