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Getting court orders to force local Internet service providers (ISPs) to block access to websites engaged in the mass distribution of pirated content is one of the few effective tools that rightsholders can use given these sites operate overseas and thus outside the reach of other legal remedies. The underlining premise is simple: by making it harder to access illegal content, government can encourage more people to use legal content services and thus support actual content creators—and not the piracy operators who want to profit off their hard work.
Website blocking’s evolution as an anti-piracy tool in Europe is informative for policymakers around the world, such as the United States, as the EU has debated and considered many of the key questions and challenges that will inevitably arise when they consider their own website blocking regime. Most importantly, in mid-2020, the Amsterdam Court of Appeal (CoA) finally issued a dynamic blocking injunction against two of the Netherland’s largest ISPs, Ziggo and XS4All, ensuring users could not access one of the world’s most popular piracy websites, The Pirate Bay. The decision was the end of a long and winding legal dispute that led to a landmark ruling by the Court of Justice of the European Union (CJEU, the highest court in the EU) on website blocking. The case took a decade, but at least the various court decisions provide greater clarity and certainty about EU laws and website blocking orders. The analysis and judgements hold broader policy relevance for other countries as they provide clear, reasoned, and detailed support for its use, and in doing so, the decision rebuts many of the baseless criticisms that continue to get thrown at proposals for website blocking as a copyright protection tool.
Case by Case, Decision by Decision: A Framework to Block Access to Piracy Sites and Better Protect Creative Content Emerges via the CJEU
Website blocking has undergone a thorough legal examination and has succeeded in coming out the other side. In 2010, BREIN (a Dutch rightsholders' society) asked the Dutch courts to issue an injunction to get the local ISPs to block their users from accessing the Pirate Bay. The case weaved its way up through Dutch courts, which eventually referred several key questions to the CJEU in 2015, which led to the Stichting Brein decision (analyzed below). The CJEU made its judgment in 2017, after which the case was referred to the Dutch Supreme Court and Amsterdam Court of Appeal for a final decision.
The CJEU’s 2017 and 2015 Decisions: Making It Clear and Final
Together, the CJEU’s 2017 and 2015 judgements are important as they clearly identify both that the Pirate Bay and others like it are facilitators of mass copyright infringement and that website blocking is a necessary, proportionate, and effective tool to target such piracy sites. The judgements are also important in how they consider and rebut several common legal defenses that the Pirate Bay and other piracy sites have relied upon in trying to avoid targeted legal action in the EU and elsewhere around the world, highlighting three key points.
The first, overarching point, that the CJEU made in its 2015 decision (known as the Stichting Brein or the Pirate Bay case) is that sites like the Pirate Bay make acts of communication to the public and thereby are liable for copyright infringement. This is important as the CJEU held that even if the copyright-protected works in question are placed online by the users of the online sharing platform, the operators of that platform can play an essential and active role in making those works publicly available. These types of acts take several rights, including dissemination discretion, away from the content creators who legally have the sole right to choose where and how their content is communicated to the public.
The Pirate Bay and other piracy sites try to defend themselves by saying that they are not responsible for, or aware of, what their users post and therefore can’t be held responsible for the content. The CJEU rejected this fallacy as the Pirate Bay indexes, categorizes, and provides a search function for the torrent files (which guide users and content in a peer-to-peer file sharing network) for copyright-protected material, making the illegal copies easier to locate and download. It also deletes obsolete or faulty torrent files and actively filters some content. It was clear that the Pirate Bay was aware that it provided access to works published without the consent of the copyright owners given the latter had alerted them to the fact and it did nothing about the problem. As if its name and this conduct weren’t enough to make clear that its business was based on theft, the court noted that Pirate Bay explicitly states in blogs and forums that it makes copyright-protected material available to users and it encourages users to make further copies of this work.
Since the main purpose of the Pirate Bay is clearly to facilitate piracy, the second key point the ECJU makes is that it is not protected by certain provisions for websites focused on legal content and engaged in good faith efforts to work with rightsholders and others concerning content on the site. This may seem like a simple and surprising point to casual readers—who can see in 10 seconds that the Pirate Bay is actively involved in providing massive amounts of pirated material and thus breaking the law—but it was an important outcome that makes this commonsense view solidified in EU common law. It also points to the absurdity of policy discussions where opponents of intellectual property (IP) rights online still debate the Pirate Bay as if it is somehow unclear what its purpose is and whether the law should provide rightsholders with legal remedies to easily and quickly target these actors.
Through these decisions, the CJEU stated the Pirate Bay and others cannot try to play dumb about what is going on in trying to avoid legal liability. Importantly, the CJEU decision states that operators of an online service like the Pirate Bay (which pretend to be ignorant as to what is going on) are not required to have actual knowledge of infringing material on the site. Rather, the bar for holding these service providers legally liable is lowered to constructive knowledge (where they would know what is going on if they took a reasonable look). Piracy site operators consistently attempt to hide behind safe harbor provisions, but this decision undoubtedly removes that option for blatant piracy sites in Europe. The judgment will likely have substantial implications on future cases and policy decisions, including the broader debate about primary and secondary liability for copyright infringement, the ability of platforms to qualify for the safe harbor regime within the EU’s E-Commerce Directive, and debates concerning EU copyright reform.
The third and final key point from the CJEU decision is that there was no doubt that the Pirate Bay’s activities were carried out with the purpose of obtaining a profit (Swedish prosecutors claim the Pirate Bay generated $3 million in ad revenue each month, and this was in 2008, so it’d likely be much more today). A 2013 study showed that the 30-largest piracy sites generated an average $4.4 million in ad revenue annually, while high-traffic torrent and P2P sites made $6 million annually. Just in the United States, it’s estimated that pirated subscription IP television services (those which resemble Netflix, etc.) represent a $1 billion industry. The profit imperative is important to reiterate given the false and naïve statement often made by opponents of IP that piracy operators are ideologically driven and simply trying to “set information free.” This framing, and this narrative, remains embedded in many debates and media reports, despite the fact it is blatantly theft. If these facts were applied to any other setting, it wouldn’t be up for debate. The CJEU’s point provides important clarity that at the heart of the vast majority of website blocking cases is piracy-as-a-business-model and not human rights issues (further analyzed below). If opponents of IP recognized and accepted these central points, it would be much easier to debate cases where genuine human rights issues are involved and how best to calibrate laws and regulations to protect them. Instead, too often, opponents simply frame any and all efforts to enact laws online as censorship and an attack on human rights.
Applying the CJEU’s Judgement and the UPC Telekabel Wien Decision Framework
The Amsterdam Court of Appeal’s decision in BREIN vs. the ISPs is also notable as it provided a detailed application of the requirements laid down in the UPC Telekabel Wien decision (2018). Essentially, the framework provides a reasonable set of issues and interests for courts to weigh up and balance in considering website blocking cases. In its final decision, the Court of Amsterdam ordered the ISPs to enact a dynamic blocking injunction against the Pirate Bay within 10 days, which included blocking any subsequent proxy and mirror sites within 10 days of notification. In its decision, the court shows that website blocking is reasonable, effective, and proportionate for the various stakeholders and interests involved.
The decision is instructive as it applied the four requirements set out by the CJEU in determining whether to grant a dynamic blocking injunction:
- The requested measures do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available;
- The requested measures have the effect of preventing unauthorized access to protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging Internet users from accessing that subject matter;
- The addressee of the injunction must have the possibility to maintain before the court that the measures taken were indeed those which could be expected of them to prevent the proscribed result; and
- National procedural rules must provide a possibility for Internet users to assert their rights before the court once the implementing measures taken by the ISP are known.
First, the Amsterdam Court of Appeal identified that even if a piracy site had some lawful content, this should not preclude the use of a blocking injunction if the vast bulk of the material is copyright-infringing. The court recognized that “the Pirate Bay represents only a ‘miniscule‘ part of the information available on the internet,” and that the injunction was proportionate given the scale and severity of the copyright infringement facilitated by the site. Therefore, under the first part of the CJEU’s test, blocking access to the Pirate Bay even if it did host lawful content was not unreasonable given that most material was copyright-infringing.
This means incidental lawful content on a piracy site does not shield website operators from legal repercussions related to the bulk of its (illegal) content. This is a commonsense test that many advocates of stronger IP enforcement support. If the proportions were reversed, legal action should adjust accordingly in that websites that have some incidental copyright-infringing material should not be targeted by copyright proceedings. There are so many piracy sites involved in large-scale piracy that it’s absurd to think rightsholders and policymakers should be worried about a website with a few illegal files. In fact, this differentiated targeting of large-scale, commercially driven piracy sites was also part of recent U.S. legal reforms that closed a loophole where streaming piracy was not treated as a felony (like downloading is).
Second, the Amsterdam Court of Appeal noted that website blocking injunctions are reasonably effective in discouraging users from accessing sites with illegal content, like the Pirate Bay. Recognizing the initial website blocking injunction will not be 100 percent effective because Pirate Bay users will shift to mirror and proxy sites, the court issued an injunction that is dynamic in scope, allowing regular amendments to include these mirror and proxy sites as they come to light.
This sensible determination touches upon another common point in debates around online enforcement around the world—the goal of website blocking is not to completely and immediately eliminate digital piracy. The ISPs argued that users will simply switch to other torrent sites, so that the injunction will not result in an overall decrease in copyright infringement. For example, users can use virtual private networks (VPNs) to access copyright-covered content or use mirror and proxy sites to access it (until these are also hopefully blocked as part of a dynamic injunction). The ISP’s position is they should not have to block websites because it is not 100 percent effective all of the time, as if it’s not worth doing anything if you can’t address everything perfectly all the time.
This ignores the fact that the goal of copyright-enforcement tools like website blocking is to make it sufficiently difficult that it discourages some of the many casual consumers of piracy to shift to legal providers. Perfection should not be the enemy of the good when there are significant benefits from such simple actions as making it a bit harder for consumers to access infringing material. Thankfully, the court saw through the ISP’s argument in that the EU legal framework seeks to achieve a high level of IP protection and that case-by-case, the aggregate impact of website blocking injunctions and other anti-piracy policies shift consumer behavior such that it supports creators.
Third, the court weighed and balanced the human rights issues involved—the freedom of ISPs to conduct a business and a rightsholder’s right to property—and determined that, given the relatively minor financial costs incurred by ISPs, the latter’s rights deserve precedence. The ISPs tried to make the case that getting them to implement website blocking orders infringed their freedom to conduct business (article 16 of the Charter of Fundamental Rights of the European Union). In referring to the UPC Telekabel Wien case, the Amsterdam court determined that the blocking injunction (even if it imposes substantial costs on the ISP) does not unduly impinge on this right (as they are relatively minor in the grand scheme of the ISP’s business). Therefore, such costs are trumped by the rightsholder’s right to property (article 17 of the Charter of Fundamental Rights of the European Union).
In addition to the three key points above, the court also dispelled a few other spurious arguments made by opponents of website blocking, stating:
- Website blocking is targeted and proportionate: The court held that website blocking is not a general monitoring obligation as it is directed at specific domain names. This is important as opponents have tried to use the scare campaign based on the completely false scenario that ISPs will be peering into user’s web activity.
- Website blocking does not undermine net neutrality: Website blocking does not violate net neutrality because the underlying fundamental rights can be curtailed by lawful measures, as confirmed by successive CJEU decisions. In essence, the end result shows that not all content on the Internet deserves to exist and be protected by law and that countries can take clear, reasonable, and targeted measures against illegal material without undermining their commitment to “a free and open Internet.”
The Broader Relevance to Global Debates about the Digital Economy and How to Support Content Creators
Ten years ago, the proposal to use website blocking injunctions to target copyright infringement was controversial. The end-of-the-Internet hyperbolic debate around SOPA/PIPA in the United States is indicative of the type of debate that such proposals used to receive. Since then, dozens of countries, including many rule-of-law and human rights-defending ones, have enacted website blocking frameworks, and the Internet continues to flourish. The highest court in the European Union considered and weighed up many of the claims used by opponents, and it determined that they do not hold up under close scrutiny, especially when applied to a case involving one the world’s largest and most infamous piracy operators, the Pirate Bay.
The CJEU took a reasoned, detailed, and comprehensive look at digital piracy, The Pirate Bay, and the use of blocking injunctions and decided that the latter is a fair, effective, and proportionate tool to target a service which is clearly involved in the mass, illegal dissemination of copyrighted content for profit. It would be a massive step in the right direction if policymakers in the United States and around the world could focus on the facts and weigh up the various interests and stakeholders in a similarly sober and dispassionate way as the CJEU.