Making available and managing an online file sharing platform, such as ‘The Pirate Bay’, may constitute an infringement of copyright.
Even though the files in question may be uploaded by the users of the online sharing platform, its operators play essential roles in making those works available.
Netherlands foundation Stichting Brein brought proceedings before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) seeking an order requiring internet access providers Ziggo and XS4ALL to block the domain names and IP addresses of ‘The Pirate Bay’, an online file sharing platform where most of the files in question are copyright-protected works in respect of which consent to share those works have not been given by the rightholders.
The Netherlands court decided to refer questions to the Court of Justice on the interpretation of the EU Copyright Directive, namely, whether ‘The Pirate Bay’ was making a ‘communication to the public’ within the meaning of the directive and may therefore be infringing copyright.
In today’s judgment, the Court held that the making available and management of an online sharing platform must be considered to be an act of communication for the purposes of the directive.
Attention was drawn to previous case-law which infers that as a rule, any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is liable to constitute an ‘act of communication’ for the purposes of the directive.
The Court also highlighted the fact that the operators of the platform played an essential role in making those works available, by indexing the torrent files, categorizing them, deleting obsolete or faulty torrent files and actively filtering content.
The full text of the judgment can be found here.