Following court orders and site blocking regimes worldwide, The Pirate Bay is blocked in dozens of countries.
This is also the case in the Netherlands where the legal process took more than a decade to conclude.
In 2010, Dutch anti-piracy group BREIN first 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.
After multiple rulings, appeals, and detours through the Supreme Court and the EU Court of Justice, the Amsterdam Court issued its final verdict this June. The outcome was clear – the ISPs must block subscribers from accessing The Pirate Bay.
While many people assumed that this would end the legal battle once and for all, it didn’t. Soon after the verdict was made public, Ziggo, KPN and XS4All unblocked all Pirate Bay proxies.
These proxies had been blocked for years as part of a preliminary ruling that also required the providers to block The Pirate Bay. However, the final verdict superseded that ruling and, unlike the preliminary injunction, didn’t cover proxies and mirrors.
BREIN initially hoped that the companies would call an end to the fight by simply blocking these additional domains voluntarily. Especially since a separate court order already requires other Dutch ISPs to do the same. However, Ziggo, KPN and XS4All dug their heels in.
The ISPs decided to unblock all Pirate Bay mirrors and proxies and argued that BREIN had to go to court again if they wanted these to be re-blocked. This is exactly what the anti-piracy group – who described the ISPs’ actions as “downright silly” – did a few weeks ago.
In an interim proceeding, the ISPs argued that instead of going after them, BREIN should target the operators directly. Or alternatively, it could go after their domain registries or Cloudflare, which provides services to many of the sites in question.
In a new verdict announced last week, the court doesn’t deny that these intermediaries play a role, but it notes that the same arguments were already considered in a previous case and haven’t changed. As such, it doesn’t have an impact on the request directed at the ISPs.
The court concluded that the proxies and mirrors are directly copying The Pirate Bay. They communicate copyright infringing works to the public and a blockade is therefore warranted.
The ISPs also argued that blocking proxies and mirrors is ineffective. People can easily bypass the blockades with VPNs, for example. In addition, pirate streaming sites have outgrown torrent sites such as The Pirate Bay in recent years, which means that the effect of a blockade will be limited.
Again, the court doesn’t see how that changes things here. Torrent sites still remain widely used. And while site blocking may not be perfect, it has some effect.
“Although it can be assumed that streaming has increased and that the blocks can be avoided using VPNs, this does not mean that it should be assumed, in these interim relief proceedings, that the proposed blockades are ineffective or not effective enough,” the court notes.
“For the normal internet user it can be assumed that a blockade of mirror and proxy sites results in these sites no longer being accessible, or at least harder to access, which makes copyright infringement more difficult. This type of blocking is considered to be effective.”
The court kept European jurisprudence in mind, which holds that blockades have to make it harder to block pirated material but shouldn’t needlessly block legitimate content. While The Pirate Bay does have legitimate content, this is believed to be minimal.
Ziggo also brought up that the high costs of the blocking efforts, which were €62,280 between September 2017 and October 2018, outweigh the potential benefits, especially when these can rise even higher with future blocks. Again, the court disagreed.
All in all, the Lelystad Court ruled that Ziggo, KPN, and XS4ALl must block the TPB proxy and mirror sites. It granted a so-called dynamic blockade, which means that BREIN can frequently request updates to add new domain names if they become available.
The ISPs must implement the blocking measures within 10 days and risk a €10,000 fine for every violation of the order, to a maximum of €100,000. In addition, the companies also have to pay the costs of the proceeding, which are put at €15,000 for each provider.
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A copy of the court order, courtesy of IE-forum, is available here (pdf)
