'BitTorrent'-type websites, which work as platforms to make file uploads publicly accessible, may be held responsible for any breaches of copyright, said Advocate General Maciej Szpunar on Wednesday 8 February, in his conclusions presented to the Court of Justice of the EU regarding a case involving one of the best-known such websites, The Pirate Bay.
'BitTorrent'-type sites have been under the watchful eyes of the national authorities for a long time and the pressure has only increased. They are most frequently associated with platforms that allow anybody to get hold of protected works very easily. The legal problem lies in the fact that websites of this kind act simply as an intermediary, with no involvement in the uploading stage as such, as the files are shared only between users via a peer-to-peer network.
In this case, a Dutch copyright defence association went to the Dutch courts in pursuit of the most emblematic 'BitTorrent' site, The Pirate Bay (TPB). It asked the two Internet access providers, Ziggo and XS4ALL, to block access to TPB on the grounds that it was streaming protected works to the public. The Dutch courts referred the matter to the Court of Justice, asking whether it was possible to argue that TPB is communicating protected works to the public and thereby breaching copyright.
The Advocate General felt that it is fairly clear that websites of this kind play a key role in making works protected by copyright available and supplying them to users, as the files would be inaccessible without them. It is therefore reasonable, he argued, to presuppose that the operators of sites such as TPB are aware of the copyright violations and have refrained from acting to block access to the works in question, even though they are under an obligation to do so.
If the Court did not go along with this line of argument, it should still allow the national courts to require Internet access providers to prevent users from accessing websites such as TPB, as the operators of this site may, by virtue of national law, be held responsible for copyright infringements committed by the users of the network, Szpunar also suggested. This must be proportionate, he stressed, at the same time observing that 90% of the files made accessible on the TPB website contain works that are publicly available without the authorisation of the copyright holders. (Original version in French by Jan Kordys)