People may use telecoms networks to pass information to each other. Some websites such as that run by The Pirate Bay allow people to download software that enables them to pass small pieces of information around a telecoms network. The question in this case is whether a Dutch court can order telecoms companies to block their customers’ access to websites like The Pirate Bay in order to stop presumed copyright infringement from taking place.
The case concerns peer-to-peer technology. Although many tech-savvy readers of EU Law Radar will be aware of how this technology works and take comfort from the fact that the Dutch Supreme Court does explain this technology in some detail to the CJEU, there may be other readers who are less familiar with technology and less interested in the precise detail of what computers and websites do with ‘initial seeders’, ‘magnets’, trackers and indices.
For those readers, it may help to describe the case in these terms. The case concerns a website that is run by The Pirate Bay. The website contains a so-called BitTorrent Index. This enables users of the website to download a piece of software onto their computers. Once there, the software deals with an image or a piece of music that is already stored on a user’s computer and splits it up into a myriad of tiny jigsaw-like fragments. The software then permits some of those pieces to be uploaded onto the internet and exchanged with other users of the website who have downloaded the same software too. In turn, those users can download and then upload other jigsaw-puzzle pieces of the same image or music and exchange these with other users in the network. In the end, the software can be used by yet another user in the network so that their computer will assemble all of those tiny puzzle pieces into the complete image, film or piece of music. The end user appreciates the film or music uninterrupted by all of the technical wizardry going on, or which has gone on, in the background. The key point is that peer to peer technology allows people in a network to exchange information among themselves without the need for a person to upload the entire work onto a central computer server for subsequent download by other people in the network.
This technology is popular. It also infuriates the world’s film and music industries, who fear a loss of revenue from film and music sales. In Holland, those companies also have an industry lobby organisation at their disposal, the Stichting Brein. This body has gone off to the Dutch courts wanting court orders to curtail the use of this peer to peer technology and thereby squash the social phenomenon of file-sharing.
To those ends, Stichting Brein has knitted together a legal argument that is couched in terms of copyright law. Namely, it claims that The Pirate Bay website is ‘communicating’ copyright-protected works to the ‘public’ contrary to EU copyright law. However, rather than go after The Pirate Bay website, Stichting Brein is pursuing the rich, major telecoms companies that are active on the Dutch market, and it has asked the Dutch courts for court orders requiring the telecoms companies to block their customers’ access to The Pirate Bay website.
Stichting Brein think that the Dutch courts can issue such orders against the telecoms companies because Brein considers them to be ‘intermediaries’ to their customers’ presumed copyright-infringing activities. The legal position of intermediaries is governed in part by the EU’s enforcement Directive, and in part by the EU’s InfoSoc Directive.
Article 11 of the EU’s ‘enforcement’ Directive 2004/48/EC on ‘Injunctions’ provides:
Member States shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement. Where provided for by national law, non-compliance with an injunction shall, where appropriate, be subject to a recurring penalty payment, with a view to ensuring compliance. Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC
Article 8(3) of the EU’s InfoSoc Directive provides:
Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.
Stichting Brein places particular emphasis on how the term ‘intermediary’ has been interpreted by the CJEU in UPC Telekabel Wien. The CJEU had reasoned:
29 However, UPC Telekabel disputes that it may be considered, for the purposes of Article 8(3) of Directive 2001/29, to be an intermediary whose services are used to infringe a copyright or related right.
30 In this respect, it follows from Recital 59 in the preamble to Directive 2001/29 that the term ‘intermediary’ used in Article 8(3) of that directive covers any person who carries a third party’s infringement of a protected work or other subject-matter in a network.
31 Having regard to the objective pursued by Directive 2001/29, as shown in particular by Recital 9 thereof, which is to guarantee rightholders a high level of protection, the concept of infringement thus used must be understood as including the case of protected subject-matter placed on the internet and made available to the public without the agreement of the rightholders at issue.
32 Accordingly, given that the internet service provider is an inevitable actor in any transmission of an infringement over the internet between one of its customers and a third party, since, in granting access to the network, it makes that transmission possible (see, to that effect, the order in Case C‑557/07 LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten  ECR I‑1227, paragraph 44), it must be held that an internet service provider, such as that at issue in the main proceedings, which allows its customers to access protected subject-matter made available to the public on the internet by a third party is an intermediary whose services are used to infringe a copyright or related right within the meaning of Article 8(3) of Directive 2001/29.
33 Such a conclusion is borne out by the objective pursued by Directive 2001/29. To exclude internet service providers from the scope of Article 8(3) of Directive 2001/29 would substantially diminish the protection of rightholders sought by that directive (see, to that effect, order in LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten, paragraph 45).
34 That conclusion cannot be called into question by the argument that, for Article 8(3) of Directive 2001/29 to be applicable, there has to be a contractual link between the internet service provider and the person who infringed a copyright or related right.
35 Neither the wording of Article 8(3) nor any other provision of Directive 2001/29 indicates that a specific relationship between the person infringing copyright or a related right and the intermediary is required. Furthermore, that requirement cannot be inferred from the objectives pursued by that directive, given that to admit such a requirement would reduce the legal protection afforded to the rightholders at issue, whereas the objective of that directive, as is apparent inter alia from Recital 9 in its preamble, is precisely to guarantee them a high level of protection.
36 Nor is the conclusion reached by the Court in paragraph 30 of this judgment invalidated by the assertion that, in order to obtain the issue of an injunction against an internet service provider, the holders of a copyright or of a related right must show that some of the customers of that provider actually access, on the website at issue, the protected subject-matter made available to the public without the agreement of the rightholders.
37 Directive 2001/29 requires that the measures which the Member States must take in order to conform to that directive are aimed not only at bringing to an end infringements of copyright and of related rights, but also at preventing them (see, to that effect, Case C‑70/10 Scarlet Extended  ECR I‑11959, paragraph 31, and Case C‑360/10 SABAM  ECR, paragraph 29).
38 Such a preventive effect presupposes that the holders of a copyright or of a related right may act without having to prove that the customers of an internet service provider actually access the protected subject-matter made available to the public without their agreement.
39 That is all the more so since the existence of an act of making a work available to the public presupposes only that the work was made available to the public; it is not decisive that persons who make up that public have actually had access to that work or not (see, to that effect, Case C‑306/05 SGAE  ECR I‑11519, paragraph 43).
40 In view of the above, the answer to the first question is that Article 8(3) of Directive 2001/29 must be interpreted as meaning that a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, for the purpose of Article 3(2) of that directive, is using the services of the internet service provider of the persons accessing that subject-matter, which must be regarded as an intermediary within the meaning of Article 8(3) of Directive 2001/29.
However, the Dutch Supreme Court thought that the key paragraph was 32 of UPC Telekabel Wien. They wondered what the situation should be if The Pirate Bay website was not, strictly-speaking ‘communicating works to the public’, for works were not centrally-stored, and then the website would not equate to a website making available copyright protected works to the public.
Unsurprisingly, the major telecoms companies are strongly resisting Stichting Brein’s petition for court orders to be issued against them. They too are seeking to rely on the CJEU’s case law. Basically, they say that a court order requiring them to block a website would be ineffective, and would therefore fail the effectiveness and proportionality requirements in EU law as set out in the CJEU’s judgment in Case C-324/09 L’Oréal/eBay, ECLI:EU:C:2011:474.
They also point out that requiring them to create blocks on websites would unjustly interfere with their freedom to conduct their business contrary not only to Article 3 of the EU’s ‘enforcement’ Directive but also the EU Charter.
Faced with the uncertainties inherent in the CJEU’s case law, the Dutch Supreme Court does not know whether a court order should be issued, and it has therefore decided to ask a couple of questions of the CJEU. The questions turn on the correct definition which should be given to the concepts of a ‘communication to the public’, and an ‘intermediary’.
My unofficial translation of the questions asked by the Dutch Supreme Court reads:
1. For the purposes of Article 3(1) InfoSoc Directive, is a website administrator making a ‘communication to the public’ when the website contains no copyright-protected works but a system – as described in sections 3.1 and 5.5 of the referring order – which indexes and categorises meta-information about the protected works on users’ computers, such that the system allows users to trace, upload and download copyright-protected works?
If the answer to Question 1 is in the negative, then:
2. Is there scope for a court order to be issued against an intermediary, as defined in Article 8(3) of the Enforcement Directive and Article 11 of the InfoSoc Directive, when, as is set out in Question 1, he is facilitating the infringing acts of third parties?
The referring order also refers to a number of recent CJEU judgments in respect of a ‘communication to the public’, including, C-466/12, Svensson , ECLI:EU:C:2014:76. and Cases C-135/10, Marco del Corso; and C-607/11, TVCatchup ECLI:EU:C:2013:147. The case also refers to C-432/09, Airfield. For readers interested in Airfield, I have written a small review, available here: Airfield, Intermediaries and the Rescue of EU Copyright Law.
This latest Stichting Brein reference could be interesting because there are issues in it which are being raised in other preliminary references currently before the CJEU.
Issues of anonymous use of the internet are associated with The Pirate Party and they are also at the heart of other pieces of litigation including: Case C-484/14, McFadden – a mere conduit? and Case C-582/14, Breyer – seeing the logs from the trees in privacy law.
The argument that court orders and legal measures can constitute an interference in business freedom contrary to the EU Charter is also being, or has been, rehearsed in:
Case C-526/15, Uber Belgium – facilitating a mobility service not a taxi service
Case C-547/14, Philip Morris Brands – the Second Tobacco Products Directive is invalid
Case C-484/14, McFadden – a mere conduit?
And the CJEU’s judgment in L’Oreal is also at stake in another ‘intermediary’ dispute which has just been made by the Czech Supreme Court.
Stichting Brein is also the mastermind of another action currently pending before the CJEU.
It should also be mentioned that UPC Telekabel Wien is also being discussed in McFadden.
This post is based on the EU Law Radar update published on 16 November 2015.