From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Wednesday, 8 February 2017

BREAKING: AG Szpunar advises CJEU to rule that The Pirate Bay makes acts of communication to the public

Is there a communication to the public within the meaning of Article 3(1) of the InfoSoc Directive by the operator of a website [The Pirate Bay, TPB], if no protected works are available on that website, but a system exist by means of which metadata on protected works which is present on the users’ computers is indexed and categorised for users, so that the users can trace and upload and download the protected works on the basis thereof?

This is the principal question that the Dutch Supreme Court (Hoge Raad der Nederlanden) referred to the Court of Justice of the European Union (CJEU) in Stichting Brein, C-610/15.

As readers will promptly recall, this is just the last in a(n impressive, quantity-wise) series of references for a preliminary ruling seeking clarification on the interpretation of the right of communication to the public within Article 3(1) of the InfoSoc Directive, the most immediate precedents being GS Media [Kat-coverage here] and the (pending) Filmspeler case [on which see the Opinion of Advocate General (AG) Campos Sánchez-Bordona here].


There is not much to say here. Dutch anti-piracy organisation Stichting Brein applied for an injunction (to be granted under the Dutch equivalent of Article 8(3) of the InfoSoc Directive) against access providers Ziggo and XS4ALL to block access by recipients of their services to the internet addresses of the website of TPB.

That application, upheld at first instance, was dismissed on appeal, essentially on the grounds, first, that it is the recipients of the services of the defendants in the main proceedings, and not TPB, which are the originators of the copyright infringements and, secondly, that the blocking sought would not be proportionate to the aim pursued, namely the effective protection of copyrights. 

Stichting Brein appealed on a point of law against the latter decision before the referring court.

AG Szpunar
Today's Opinion

AG Szpunar has just issued his 
Opinion, advising the CJEU to answer the question of the Dutch Supreme Court in the AFFIRMATIVE. 

More specifically, "the fact that the operator of a website makes it possible, by indexing them and providing a search engine, to find files containing works protected by copyright which are offered for sharing on a peer-to-peer network, constitutes a communication to the public within the meaning of Article 3(1) of [the InfoSoc Directive], if that operator is aware of the fact that a work is made available on the network without the consent of the copyright holders and does not take action in order to make access to that work impossible."
 [para 54]

The Opinion is EXTREMELY interesting, for a number of reasons.

EU, not national solutions = a matter of primary liability

It is sufficient to note that the AG rejected at the outset the view of the European Commission and UK that any solution to the possible liability of a site like The Pirate Bay should be found under national law 
[translated (possibly): under secondary liability, an area unharmonised at the EU level].

According to the AG this would lead 
[and has led] to very diverging approaches and ultimately undermine the objective of the EU legislature to harmonise the substantial scope of the rights enjoyed by authors and rightholders within the single market [para 3].

The TPB case is different from GS Media's

Logically linked with the point above, the AG also noted that the problems raised in this case are different from those addressed in 
Svensson and GS Media.

According to the AG, in fact, while those cases concerned the secondary communication of works already accessible on the internet by a person providing the online content himself, the present case concerns original communication, made on a peer-to-peer (P2P) network. As such, the CJEU reasoning in those cases cannot be directly applied to the case at hand 
[para 4].

The "unavoidable" role of TPB

Following a review of the technical functioning of P2P networks, the AG said that what is relevant in order to answer the question posed by the Dutch Supreme Court is the consideration of the role played by websites such as TPB in file-sharing on P2P networks: "[t]hat role is crucial" 
[para 26].

More specifically, the use of any P2P network "depends on the possibility of finding peers available to share the desired file. The information, whether it is technically in the form of torrent files, ‘magnet links’ or some other form, is found on websites such as TPB. Those sites provide not only a search engine but also, as in the case of TPB, indexes of the works contained in those files, classified in various categories, for example, ‘100 best’ or ‘the latest’. So it is not even necessary to look for a particular work, it is sufficient to choose from those on offer, as in the catalogue of a library (or rather an audio or video collection, since it is mainly music and films). Those sites also often provide additional information, inter alia on the estimated download time and the number of active ‘seeders’ and ‘leechers’ for a particular file. Although, as the defendants in the main proceedings contend, it is therefore theoretically possible to find files offered for sharing on a peer-to-peer network without using a site like TPB, in practice, the search for such files generally leads to such a site or a site aggregating data from several peer-to-peer networks. The role of websites such as TPB is therefore practically unavoidable in the operation of those networks, in any event for the average internet user." 
[paras 26-27]

Communication to the public

Having exhausted these preliminary remarks, the AG turned to Article 3(1) of the InfoSoc Directive and what makes an act of communication to the public. 

As usual 
[just think of VOBMc Fadden, or Hotel Edelweiss], he provided an analysis of the history and rationale of the relevant provision considered and recalled [as per consistent CJEU case law, at least since SGAE] that to have an act of communication to the public it is necessary to have: (1) an act of communication, and (2) the presence of a public [para 36].

How Kats communicate
(1) An act of communication: no transmission is required

Considering the first condition, ie an act of communication, the AG recalled that the CJEU has emphasised "the essential role of the player originating the communication and the deliberate nature of its intervention. That player makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give its customers access to a protected work, and does so in particular where without that intervention its customers would not, in principle, be able to enjoy the broadcast work" 
[para 37, recalling GS Media, para 35].

The AG then tackled the thorny issue of whether transmission is actually required 
[readers will remember that the European Copyright Society stated that this is necessary to have an act of communication]

While it is true that "in the case of making available, the actual transmission of the work takes place only potentially and on the initiative of the recipient", the AG 
[correctly] stated "the ability of the copyright holder to prevent the communication arises at the actual time of making available, irrespective of whether and when transmission actually takes place." [para 38]

(2) The presence of the public: the 'new public'

Turning to the second criterion, ie the presence of the public, this involves two requirements: (a) an indeterminate but fairly large number of potential recipients 
[para 39]; and (b) a 'new public' [para 40] which only comes into consideration when the technical means used is the same as the one used for the initial communication [para 42].

Communication to the public on P2P networks

According to the AG, "[t]here is no question ... that the making available to the public of copyright-protected works takes place where those works are shared on a peer-to-peer network." 
[para 44]

The question is, however, who is to be regarded as making the relevant act of communication: is the P2P network users or, rather, the operator of an indexing site such as TPB?

According to the AG, while users deliberately make the works in their possession available to other users of the network 
[para 49], "those works would not be accessible and the operation of the network would not be possible, or would at any rate be much more complex and its use less efficient, without sites such as TPB, which enable works to be found and accessed. The operators of those sites therefore arrange the system which enables users to access works that are made available by other users. Their role may therefore be regarded as necessary." [para 50]

The operator of a site that merely indexes the content that is present on the P2P network has, in principle, no influence over the appearance of a given work on that network (it is only an intermediary which enables users to share the content on a P2P basis). As long as he is unaware that the work has been made available illegally or if, once it has been made aware of the illegality, it acts in good faith to rectify the matter, it has no liability for the users' communications. 

"However, from the moment that operator has 
[actual, eg by means of a notification from the relevant rightholder: para 52] knowledge of the fact that making available took place in breach of copyright and does not take action to render access to the work in question impossible, its conduct may be regarded as being intended to allow, expressly, the continuation of the illegal making available of that work and, hence, as an intentional action." [para 51]

No presumption of knowledge
Rejecting the idea of a presumption of knowledge

The AG rejected that in a case like this it would be appropriate to have a presumption of knowledge like the one adopted in GS Media 
[para 52] because such a presumption would amount to imposing on operators of indexing sites of P2P networks, which normally operate for profit, a general obligation to monitor the indexed content [contrary to Article 15 of the Ecommerce Directive].

The TPB operators: joint liability

Accordingly, in a situation like TPC, the intervention of their operators "meets the conditions of being necessary and deliberate, laid down in the case-law of the Court" and those operators should therefore "also be considered, simultaneously and jointly with the users of the network, as originating the making available to the public of works that are shared on the network without the consent of the copyright holders, if they are aware of that illegality and do not take action to make access to such works impossible."

The second question

The AG also considered the second question 
[to be answered only if the CJEU answers the one on communication to the public in the negative], ie whether Article 8(3) of the InfoSoc Directive must be interpreted as offering scope for obtaining an injunction against an ISP ordering it to block access for its users to an indexing site of a peer-to-peer network by means of which copyright infringements have been committed, even if the operator of that site does not itself communicate to the public the works made available on that network.

Applicability of Article 8(3) injunctions to sites such as TPB

The AG noted that the only peculiarity of a blocking injunction 
[ie a measure that the CJEU considered compatible with EU law, although in a different context, in Telekabel] in case like the one at hand would be that blocking of access to the TPB site would affect not only users who commit copyright infringements but also the TPB site, which would not be able to offer its services to users connected to the internet through the intermediary of the defendants in the main proceedings [para 61].

The AG noted that the circumstances envisaged in Article 8(3) presuppose the existence of a link between the subject of the injunction and the copyright infringement. A measure blocking a website implies that it has been established that the operator of that site has been held liable for copyright infringement using the services of the intermediary to which the injunction is addressed. 

Blocking order
Having distinguished between situations of primary and secondary liability and considered the need to balance different fundamental rights, the AG considered that depriving internet users of access to information, by blocking the TPB site, would be proportionate to the significance and seriousness of the copyright infringements committed on that site [big, yet unsurprising, win for copyright owners].

Overall, Article 8(3) should be interpreted as permitting an injunction to be obtained against an intermediary ordering it to block access for its users to an indexing site of a P2P network, if the operator of that site can, under national law, be held liable for copyright infringements committed by users of that network, provided that measure is proportionate to the significance and seriousness of the copyright infringements committed, which is a matter for the national court to determine [para 84].


This is yet another thoughtful and good opinion of AG Szpunar. 

His construction of the right of communication to the public appears appropriate not only in light of pre-existing CJEU case law 
[and also the InfoSoc objective to provide a high level of protection], but also ... despite it. His conclusion that the presumption of knowledge adopted in GS Media should not find application in a case like the one of operators of indexing sites is in fact sensible [that the GS Media presumption of knowledge is problematic is apparent from the early national applications of this CJEU judgment in Sweden - herehere, and here -, Germany - here and here - and the Czech Republic - here].

Equally sensible 
[a reality check] is the consideration that in situations like TPB the intervention of its operators in facilitating the exchange of copyright works is deliberate and, indeed, essential

Big kudos to AG Szpunar. Let's now see if the CJEU agrees with him. Stay tuned!


FiatLux said...

Thank you for the breaking news!

Does anyone have an idea when the CJEU will give a decision on Filmspeler and TPB pending cases?

I checked on's calendar but I have not found any relevant date.

Thank you!

Eleonora Rosati said...

Usually there is a gap of 5-6 months between the release of the AG Opinion and the actual judgment.

Anonymous said...

Highly problematic with the classic Article 3 Court flaws. After a promising start-an arrogant overreaching one but he wasn't holding the pen as the original language is French and his French is mighty poor. He has now gone native and the referendaire got ahead of his or herself. I guess he got bored with not being followed with a more reasonable approach. Egeda etc. This is the worst he has produced

There is simply no hope for this area of law before the CJEU. It can be consigned to the dustbin where the SPC Regulation lives.

Anonymous said...

How can he hope to avoid "divergent" approaches across the EU with a knowledge test.

Anonymous said...

Hasn't he simply introduced secondary liability with that knowledge test? Does he understand that it will be unevenly applied anyway as it will be put to proof?. Is he not aware that simply focusing on Pirate Bay is not the way to resolve a question with wider consequences..

Federico said...

Very interesting. There is one problem though: it's not quite true that torrent trackers like TPB are essential for torrenting, not in the current technological landscape. There are user-friendly solutions which only rely on DHT search (much like the Kad search in eMule), which uses a distributed index.

Also, if indexing a torrent is an act of communication to the public, is there really no difference between the person or website which first publishes a file on BitTorrent and advertises it online, and the person or website which hosts a mere mention of that file (like a magnet link, or the torrent file)?

«So it is not even necessary to look for a particular work, it is sufficient to choose from those on offer, as in the catalogue of a library» is a good comparison. But then, torrent trackers should be recognised as private libraries and benefit from the same privileges (within some limits). It's more likely to win such an argument with a specialised private tracker like Bibliotik.

Brieuc Geuzaine Student QMUL said...

Good evening, thank you for the great article, once again, what's more on the very day of the release ! It might prove really interesting for me to analyse it in my LLM dissertation this year, regarding the right of communication to the public.

No need to publish my comment, but I think there is a small typo in the "new public" paragraph. I thought you would like to know. Indeed, I think the 'new public' criterion only comes into consideration when the technical means are the same, not when they are different (para 42 of the Opinion ; see ITV Broadcastin v TVCatchup).

I hope I don't sound critical or mean, I just love the blog and your articles. Have a nice evening.


Eleonora Rosati said...

@Brieuc: you're right - thanks!

Mirko Brüß said...

@Frederico: you said: "it's not quite true that torrent trackers like TPB are essential for torrenting"

This is missing the point. TPB has stopped operating a torrent tracker years ago. Yes, there is DHT to do what a tracker does, but finding the content you are looking for is usually done on a site like TPB, just like the AG said. DHT won't do that for a user.

Federico said...

Mirko Brüß, I've got the point, thanks. But I'm saying it's plain wrong: you probably missed some recent technological developments which popularised what has been possible for many years already. See for instance and to get a quick update. lists several other clients which include a search engine (not always decentralised).

Mirko Brüß said...

@Frederico. Yes, such technology exists. But what is the user base of Tribler compared to clients like Mainline? And Tribler search does nothing for Mainline users. All the others on the Wikipedia list use centralized, web-based I think it is fair to say that today, sites like TPB play a central role in the discovery of torrents.

Federico said...

Mirko, I agree on "central role". But the reasoning seemed to go a bit farther than that, to give a special role to a single player. Anyway, I think we clarified the respective positions. :)

Anonymous said...

You might as well close down the World Wide Web, as that vehicle shares the exact same "essentialness" that is under attack.

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