Dutch Supreme Court: decision by the Court of Appeal regarding the blocking of The Pirate Bay incorrect

Gepubliceerd op 13/11/2015 om 13:40 | Link
All options open for new blocking actions in The Netherlands
Today the Dutch Supreme Court decided on the blocking action that BREIN initiated against Ziggo et al. BREIN wants access providers to block the access of their subscribers to the illegal website The Pirate Bay (TPB). The District Court allowed this, the Court of Appeal did not. BREIN instituted cassation proceedings against this decision in Appeal with the Supreme Court.

In its decision of today, the Supreme Court has found that the decision by the Court of Appeal of The Hague of 28 January 2014 regarding the blocking of TPB is not correct. The Supreme Court furthermore asks two questions to the European Court of Justice (CJEU).
The Supreme Court holds that the Court of Appeal should not have rejected the blocking order. The Court of Appeal had rejected it mainly because this measure would not be effective since it could be circumvented. The Supreme Court does not agree with this. The possibility of circumvention does not lead to ineffectiveness per se:
“It is sufficient that a blocking measure – as far as it cannot prevent infringements – is making this difficult to take place and seriously discourages internet users to do so” is the Supreme Court’s opinion. Neither was the Court of Appeal correct in requiring the measure to affect all BitTorrent sites at once. These sites can be targeted one at a time as well. This means that in principal new blocking actions against ISP’s can be considered.   
The Supreme Court also confirms that not only TPB subscribers are infringing but also TPB itself directly infringes with the artwork that TPB distributes (for example movies- and album covers).

The Supreme Court refers the question whether or not TPB itself also infringes copyrights to the European Court. Other decisions from the CJEU hold indications that TPB would be infringing itself, but according to the Supreme Court this case differs from these CJEU cases “because it is not TPB that decides which content will be made available, but the subscribers of the site.”
The questions the Supreme Court refers to the CJEU read as follows:

1.    Can you speak of a communication to the public in the sense of Art. 3 lid 1 of the Copyright Directive by the operator of a website, in case of a website which does not make available protected content itself, but consists of a system containing (as described before in 3.1 and 5.5) of meta information about copyrighted content which individual subscribers store on their own computers, which is indexed and categorized, so that the subscribers can find and up- and download the copyrighted content?

2.    In case the answer on question 1 is negative:
Do Art. 8 lid 3 of the Copyright Directive and art. 11 of the Enforcement Directive provide in the possibility of an injunction regarding an intermediary within the meaning of these provisions when this intermediary facilitates infringing acts of third parties in the manner described in Question 1?

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