The crusade of copyright licensors against copying is as old as Copyright itself, but only lately has it been enabled to be a tool of mass censorship. The European Court of Justice has chimed in on Stichting Brein v Ziggo BV, XS4ALL Internet BV, accepting BREIN’s claim that The Pirate Bay/TPB staff actively curated content and thus was an active participant in copyright infringement merely by collecting user-generated links and information.
Apparently allowing users to select only from pre-created categories counts as curation, despite TPB staff not actively being involved in the content nor the selection of it themselves.
ECJ walks where Netherlands SoC feared to tread
Because of the broad wording of the statutes, in the previous episode of this series, the Supreme Court of the Netherlands kicked the can into the ECJ’s court , with this taped to the side:
[quote]Under those circumstances, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings before it and to refer the following questions to the Court for a preliminary ruling:
‘1. Is there a communication to the public within the meaning of Article 3(1) of Directive 2001/29 by the operator of a website, if no protected works are available on that website, but a system exists … by means of which metadata on protected works which are present on the users’ computers are indexed and categorised for users, so that the users can trace and upload and download the protected works on the basis thereof?
If Question 1 is answered in the negative:
Do Article 8(3) of Directive 2001/29 and Article 11 of Directive 2004/48 offer any scope for obtaining an injunction against an intermediary as referred to in those provisions, if that intermediary facilitates the infringing acts of third parties in the way referred to in Question 1?’[/quote]
Websites not a telegraph wire
[quote] Recitals 9, 10, 23 and 27 of Directive 2001/29 state:
‘(9) Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.
(10) If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. The investment required to produce products such as phonograms, films or multimedia products, and services such as “on-demand” services, is considerable. Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment.
(23) This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.
(27) The mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Directive.[/quote]
The ECJ has decided that clause 27 does not apply to the websites in question nor any going forward (after all, the law says physical, and The Pirate Bay is not a cable, though it may use some cables in connecting the servers to endpoints).
The case had been referred to the ECJ, Europe’s highest court, after the Supreme Court of the Netherlands found that under law, a determination could not be reached of whether or not The Pirate Bay infringed copyright by merely hosting a collection of user-generated magnet links.
BREIN can rest easy now, knowing that in the eyes of the ECJ even passive hosts of user-generated content are totally infringing copyright too.
Previous court rulings have found that hyperlinks constitute a communication to the public, therefore linking to something can be a copyright infringement. The ECJ stretched that ruling in this case to cover magnet hashes and equated magnet hashes to the content of it.
Because trackers by nature eventually stop serving ‘dead’ torrents, the ECJ held that this constitutes an active and knowing intervention by the part of TPB, fulfilling one of the conditions under which hyperlinking can be an act of copyright infringement.
The ECJ Bludgeons All Trackers Forever
The court’s ruling can be broadly interpreted to include any website that hosts a list of links to infringing content (since magnet hashes are metadata, and links are metadata, providing either constitutes a communication to the public, and since the copyright holder presumably does not authorize such a communication by the user, it’s infringing).
[quote]On those grounds, the Court (Second Chamber) hereby rules:
The concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as covering, in circumstances such as those at issue in the main proceedings, the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network.[/quote]