A long-running legal battle between Dutch ISPs and the local anti-piracy organization BREIN over blocking The Pirate Bay has concluded with a ruling in favor of BREIN. The Court of Justice of the European Union (CJEU) said yesterday The Pirate Bay could be blocked because:

“Making available and managing an online platform for sharing copyright-protected works, such as ‘The Pirate Bay’, may constitute an infringement of copyright”

That summary, from the CJEU’s press release, doesn’t capture a key aspect of the case, which is that The Pirate Bay is not storing any copyright-protected works on its site, merely hosting links to torrents. The latest judgment builds on an earlier ruling by the CJEU, which held that sharing hyperlinks to unauthorized copies was legal but only if it was done unwittingly, and not for commercial benefit. In the case of The Pirate Bay, the court has now ruled that neither applied. The Pirate Bay was run to make a profit, the judges said, as the advertising on the site indicated, and it knew it was linking to unauthorized copies:

“the operators of ‘The Pirate Bay’ have been informed that their platform provides access to copyright-protected works published without the authorisation of the rightholders. 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.”

A highly problematic aspect of the latest judgment is that the links in question were uploaded by users, not by The Pirate Bay itself, so arguably BREIN should pursue the former. However, the CJEU did not agree that this fact exonerated The Pirate Bay:

“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. In that context, the Court notes that the operators of the platform index the torrent files so that the works to which those files refer can be easily located and downloaded by users. ‘The Pirate Bay’ also offers — in addition to a search engine — categories based on the type of the works, their genre or their popularity. Furthermore, the operators delete obsolete or faulty torrent files and actively filter some content.”

The CJEU seems to be saying that if a site carries out common activities like providing an index or categorizing content uploaded by its users, it can no longer be considered a “mere conduit“, and can become an active participant in the linking to copyright material. As such, the court implies, it loses the intermediary liability protection that is enshrined in the EU’s e-commerce directive.

Undermining intermediary liability protection in this way is very bad news for companies offering online services in the EU that allow users to post links – the vast majority. It suggests that they must either stop providing any kind of search facility or content moderation/organization, or they must actively check every user posting for possible copyright infringement – clearly an impossible task, since there are so many legal factors involved. This is a hot issue at the moment, as the revised EU copyright directive includes measures that would require larger sites to filter all user uploads for possible copyright infringements.

Ironically, one outfit that will not be much affected by the judgment is The Pirate Bay. For Internet users outside the EU, the ruling will have negligible impact. They will continue to access The Pirate Bay as before. Even within the European Union, the effect will be limited, and only make itself felt after a while. The CJEU’s ruling merely clarifies the underlying law, and now it will be up to the Dutch court that referred the case to make its own decision in accordance with the CJEU’s guidelines. Even then, the most that the local court can do is to order Dutch ISPs to block direct access to The Pirate Bay. Circumventing such blocks using VPNs or one of the many proxies available will be straightforward. If anything, imposing blocks in the EU will encourage even more people there to discover and start using these kind of tools – no bad thing at a time when online privacy is under threat from many quarters.