In a landmark judgement made by the EU Court of Justice on Wednesday, it cleared the way for a ban on the peer-to-peer file-sharing website, The Pirate Bay (TPB) and similar sites in the Netherlands citing infringement of the European Copyright laws.

This would mean that internet providers in Europe can be directed to block access to TPB, even though it does not actually host any infringing material itself.

TPB is a BitTorrent peer-to-peer (P2P) file sharing site that lists catalogues of files (such as music and film files) that are shared via trackers.

The ruling is an outcome of the longest running legal battle between Stichting Brien, a Dutch anti-piracy group and two Dutch Internet providers, Ziggo and XS4ALL with the former applying for an injunctive order against the latter that would require them to block access for their customers to TPB.

According to Stichting Brein, the torrents sites are a source of illegal downloads that are being facilitated by internet firms. Further, over 90% of these files contain works made available to users without the copyright owners’ consent and TPB is not responding to requests to remove this torrent files.

As a result, the Dutch District court ordered Ziggo and XS4ALL to block subscribers’ access to TPB. However, the Dutch Court of Appeal, overturned that decision on the basis that defendants in the main proceedings, and not TPB, were the originators of the copyright infringements and, that the blocking sought would not be proportionate to the aim pursued (namely the effective protection of copyright). They also said that the blockade was ineffective and restricted the ISPs’ entrepreneurial freedoms.

The Pirate Bay was unblocked by all local ISPs in the Netherlands and they began to operate freely. Stichting Brein then took the matter to the Netherlands Supreme Court. The Supreme Court took the view that the Court of Appeal had been wrong in its analysis to overturn the blocking order and subsequently referred the case to the EU Court of Justice, seeking further clarification.

After a careful review of the case, the Court of Justice ruled that The Pirate Bay can indeed be blocked. Even though the operators don’t share anything themselves, they knowingly provide users with a platform to share copyright-infringing links. Under the EU Copyright Directive, this can be seen as “an act of communication”, the Court concludes.

“Making available and managing an online platform for sharing copyright-protected works such as ‘The Pirate Bay’ may constitute an infringement of copyright,” the court said in a press release (pdf). “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.”

The decision will now be forwarded to the Supreme Court, says a spokesman for the European Court. The Supreme Court will finally decide whether the blockade imposed on TPB in 2012 can be re-imposed again. Based on the ruling of the EU, it appears that there are no major obstacles for the Dutch Supreme Court to issue an ISP blockade.

Brein director Tim Kuik called the ruling “groundbreaking”, “This kind of torrent sites infringes copyright and the decision of the court confirms that we can demand a blockade.

The decision made at the European level in Netherlands could also have consequences on the court orders in other countries where TPB and other torrent sites are already blocked, including Austria, Belgium, Finland, Italy, and Sweden.

However, the Pirate Bay team does not seem to be too perturbed with the negative outcome.

“Copyright holders will remain stubborn and fight to hold onto a dying model. Clueless and corrupt law makers will put corporate interests before the public’s. Their combined jackassery is what keeps TPB alive,” TPB supermod plc365 tells TorrentFreak.

“The reality is that regardless of the ruling, nothing substantial will change. Maybe more ISPs will block TPB. More people will use one of the hundreds of existing proxies, and even more new ones will be created as a result.”

“Xe”, a Pirate Bay moderator mentions that while it’s an extra obstacle to access the site, blockades will ultimately help people to circumvent censorship efforts, which are not restricted to TPB.

“They’re an issue for everyone in the sense that they’re an obstacle which has to be overcome. But learning how to work around them isn’t hard and knowing how to work around them is becoming a core skill for everyone who uses the Internet.

“Blockades are not a major issue for the site in the sense that they’re nothing new: we’ve long since adapted to them. We serve the needs of millions of people every day in spite of them,” Xe adds.

Source: TorrentFreak