Copyright Mutiny - The Pirate Bay is Communicating Works to the Public, says CJEU

Internet piracy has become a very common thing in the 21st century, and websites providing access to infringing materials, specifically torrent files, are booming. While these sites don't host material themselves, they provide links to files shared by the users themselves, potentially therefore facilitating this action. Rightsholders have, arguably rightfully so, been irate about this sharing of content, and have sought to challenge and shut down these websites. A case has been raging in Europe for some time (discussed more here), with both rightsholders and website hosts undoubtedly waiting for its conclusion, which is finally here after the CJEU handed down its judgment in mid-June.

By way of a short primer, the case of Stichting Brein v Ziggo BV and XS4All Internet BV concerns the communication to the public of copyright protected works. In the matter, Stichting Brein, a foundation that protects the interests of copyright holders, took two of ISPs to court seeking to force them to block access to the website The Pirate Bay (TBP). The site, for those unfamiliar with it, gives access to both torrent and magnet files, both of which are used in the facilitation of P2P connections, linking to particular files on the computers of users sharing those files, downloading them in small parts from the users as a collective. The CJEU therefore had to determine whether the ISPs could be compelled to block access to TBP.

As discussed above the matter hinged on whether TBP communicated the works to the public under Article 3(1) of the InfoSoc Directive. With this, the Dutch Supreme Court sought answers to two questions.

The first question, as summarized by the CJEU, asked "… whether the concept of ‘communication to the public’, within the meaning of Article 3(1)… should be interpreted as covering… 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".

The CJEU set out what amounts to a communication to the public, which comprises of an 'act of communication' that happens to 'a public.

An 'act of communication' has to be assessed under a number of interdependent criteria that need to be fulfilled for the act to be deemed as one of communication. Among these criteria lie the indispensable role of the user and the nature of their intervention: "That user makes an act of communication when he intervenes, in full knowledge of the consequences of his action, to give his customers access to a protected work, particularly where, in the absence of that intervention, those customers would not be able to enjoy the broadcast work, or would be able to do so only with difficulty". In essence, if a user (or a website in this case) intervenes, with full knowledge of doing so, and gives access to copyright protected works that would otherwise be unavailable to the end-users, they would be making an act of communication. The users can also access the works whenever and wherever they please.

Thomas' new online venture would have to
end before it even began...

A 'public' amounts to an indeterminate number of potential viewer, although the number would have to be fairly large. The communication above would also have to happen through a new technical means, not employed by the original communicator (if done so at all initially), to a 'new public', i.e. "…a public that was not already taken into account by the copyright holders when they authorised the initial communication of their work to the public". Finally, the profit-making nature of the communication, if any, is not wholly irrelevant to this assessment.

Following previous decisions, including in Svensson, BestWater and Stichting Brein, the Court established that "…any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is liable to constitute an ‘act of communication’ for the purposes of Article 3(1)".

TBP's platform offers the files for download when and wherever the end-user wants to using the torrent and magnet files provided in their index. Additionally, the Court saw that, while the files were uploaded onto the site by its users and not TBP, "…by making available and managing [the] online sharing platform… intervene, with full knowledge of the consequences of their conduct, to provide access to protected works, by indexing on that platform torrent files which allow users of the platform to locate those works and to share them within the context of a peer-to-peer network". Clearly, TBP's heavy role in the management of the index of the files plays an integral part in the copying of those files by the users. Without them the users would not, potentially at least, have access to the files, making TBP's role essential in the process.

Finally, the Court rejected that TBP only merely provided the physical facilities enabling or making the communication, as the website made the location and access to the files easier through its indexing and search facilities, while actively pruning the collection of files on their website to exclude dead or faulty links.

The Court concluded that the making available and management of an online sharing platform like TBP must be considered to be an act of communication.

The second hurdle therefore was whether this was done to a 'public'. In order to determine this, the Court has to consider both how many persons have access to the same work at the same time and how many of them have access to it in succession.

Many subscribers of both ISPs' services had accessed and downloaded files from the TBP website. The 'public' concerned also included all of the 'peers' on the torrent system, which amounts to, at a given time, potentially tens of millions of users. The communication therefore does happen to an indeterminate amount of people, involving a large amount of individuals – falling in the definition of a 'public' under the Directive. The users of the website would also not have been considered by the original communicators of the works, therefore being a 'new public'.

The Court ultimately concluded that: "…the concept of ‘communication to the public’, within the meaning of Article 3(1)… must be interpreted as covering… the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata referring 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".

The decision is a very important one, and sets the tone for the enforcement of copyright against torrent websites all over the Internet, not just TBP. Clearly, the Court placed a heavy emphasis on the active management of the website, its index, and the provision of the facilities to easily search and download infringing materials from the website. This writer would agree with this assessment, since, should a very active facilitation of copyright infringement be included under Article 3, this would open up the field for a tremendous amount of abuse as a result. It will remain to be seen how this decision will impact these websites, but it is clear that rightsholders will welcome this decision with open arms. 

Source: IPKat

Press Pause - Sale of Multimedia Players to Facilitate Copyright Infringement is a Communication to the Public

The question of what amounts to a 'communication to the public' under EU law has been debated and adjudicated on fiercely in the last couple of years (discussed more here, here, here, here and here) with very little or no end in sight in the near future. Every decision seems to make an ultimate determination more and more elusive, and this writer for one thinks that the matter will never be decided. Even so, the Court of Justice of the EU has been busy yet again, and a recent decision discussing the sale of devices that aid the infringement of copyright was awaited keenly by many. After some time, the CJEU finally rendered its verdict last week.

The case of Stichting Brein v Jack Wullems dealt with the sale of a multimedia player (Filmspieler) that came pre-loaded with applications and open-source software that allowed you to access pay-for content online for free using your own TV. The Filmspieler was sold on a variety of websites, including Mr Wullems' own website. Stichting Brein found out about the sale of the Filmspieler, and requested that Mr Wullems stop selling the device, which he refused to do. Stichting Brein then took the matter to court, which ultimately ended up in the CJEU, where Stichting Brein asked four questions from the Court.

The first and second questions were dealt with together by the CJEU, which asked in essence "...whether the concept of ‘communication to the public’, within the meaning of Article 3(1) of [the InfoSoc Directive], must be interpreted as covering the sale of a multimedia player… on which there are pre-installed add-ons, available on the internet, containing hyperlinks to websites… on which copyright-protected works have been made available to the public without the consent of the right holders".

What 'communication to the public' entails requires a certain set of criteria to be fulfilled, namely an ‘act of communication’ of a work and the communication of that work to a ‘public’. Whether there has been an act of communication requires a more flexible approach where certain complementary criteria, taken holistically, are applied to the act. A particular focus is on whether, in making the act of communication, in full knowledge of the consequences, intervenes to give access to a protected work to a customer, and without their intervention, the customer would not have had access to the work in question.

A 'public' is defined as an indeterminate number of potential viewers, but implies a fairly large number of people viewing the work. The works have to, however, be communicated to a 'new public' or via new means that were not used in its prior communication. Finally, whether the communication makes a profit or not is not a wholly irrelevant criterion in this determination.

The Court therefore had to assess whether the sale of a multimedia player, as described above, would amount to a 'communication to the public'.

Dave was too lazy to care about his Filmspieler no longer working

While the InfoSoc Directive does expressly exclude the provision of physical facilities enabling or making a communication to the public, the Court determined that this didn't in itself limit it from the sale of such devices. The CJEU focussed on the pre-installation of the applications allowing for the infringing activities, which, according to the Court: "...enable[ed] a direct link to be established between websites broadcasting counterfeit works and purchasers of the multimedia player, without which the purchasers would find it difficult to benefit from those protected works", separating it from the mere provision of physical facilities for doing so.

Through this the CJEU considered that "...the provision of a multimedia player such as that at issue in the main proceedings enables, in view of the add-ons pre-installed on it, access via structured menus to links that those add-ons which, when activated by the remote control of that multimedia player, offer its users direct access to protected works without the consent of the copyright holders and must be regarded as an act of communication". Clearly the Court distinguishes between the provision of a device that would have the capability of utilizing such applications, and the pre-installation of those applications on the same device, where the proactive step of installation puts it beyond the 'mere provision of physical facilities' under the Directive.

Whether the act of communication had been done to a 'public' still remained, and the Court decided that, as the Filmspieler had been purchased by a large amount of people, and continued to be available for further purchases, and clearly the communication was therefore aimed at an indeterminate number of people amounting to a 'public' under the Directive. The Filmspieler made the protected works also available to a 'new' public, as the material accessed was not freely available online for all to view, and the Filmspieler made it available to a 'new' public beyond the contemplation of the rightsholder when the works were published. Mr Wullems knew, or ought to have known, that the hyperlinks posted provided access to works illegally placed online. Finally, if the posting of the hyperlinks is done seeking gain or profit, it is expected that the poster would check the links for legality, presuming that any illegal hyperlinks would have been included within the full knowledge of the poster. Mr Wullems sought profit through the sale of the multimedia player, and thus, his sale of the Filmspieler amounted to a communication to the public.

The CJEU was then faced with two questions, which dealt with the streaming of content, but the questions themselves were only treated as hypotheticals and didn't directly apply to the case at hand. The questions asked "...whether the provisions of Article 5(1) and (5) of [the InfoSoc] Directive… must be interpreted as meaning that acts of temporary reproduction, on an multimedia player such as that at issue in the main proceedings, of a copyright protected work obtained by streaming from a website belonging to a third party offering that work without the consent of the copyright holder satisfies the conditions set out in those provisions". The Article in question provides that, in essence, any temporary reproductions that are transient or incidental (e.g. streaming) are exempt from the rights afforded in the Directive in Article 2.

For Article 5 to apply, certain conditions need to be fulfilled, namely: the act is temporary; it is transient or incidental; it is an integral and essential part of a technological process; the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or protected subject matter; and that act does not have any independent economic significance. All of the conditions are cumulative, and need to be fulfilled for the exemption to apply. Additionally, the use under the exemption cannot conflict with a normal exploitation of the work and prejudice the interests of the author.

The key aim of Article 5 is therefore to protect innocent conduits between two parties or entities, such as the ISP, not causing liability for transient copying of works for the facilitation of services between other parties.

The Court ultimately saw that "...temporary acts of reproduction, on a multimedia player such as that at issue in the main proceedings, of copyright-protected works obtained from streaming websites belonging to third parties offering those works without the consent of the copyright holders are such as to adversely affect the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the right holder, because... that practice would usually result in a diminution of lawful transactions relating to the protected works, which would cause unreasonable prejudice to copyright holders". Due to the prejudice to the legitimate interests of the rightsholders through the streaming of content through the Filmspieler, the temporary copies made for the purpose of streaming would not be exempt by Article 5.

The decision in the case is clearly a positive one for rightsholders, particularly trying to combat the sale of multimedia devices such as in the case. What remains key in the case is the provision of physical facilities (in itself not infringing) in addition to facilitating copyright infringement can turn the provision of physical facilities into an infringing act. One would have to therefore be careful about the content and usability of devices that have the capability of infringing copyright, particularly with pre-installed software. While the case does not settle things once and for all, it remains an important step in the progression of the definition of a 'communication to the public' under the Directive.

Source: IPKat

Walking the Online Plank - Advocate General Szpunar Sets the Scene for Blocking Infringing Websites

Peer-to-peer file sharing has had its enemies since its very beginning, especially when used for sharing either protected or non-protected works online. A particular offender in the former category is the infamous Pirate Bay website, which shares hyperlinks to files known as 'torrent' files, which contain metadata on the files, linking a variety of peers (i.e. file sharers) with others wishing to download said file, and deliver pieces of the file using the P2P protocol. The fight against the Pirate Bay as an intermediary has been going on for a very long time, and the matter has been winding its way through the EU courts as well. While the CJEU has yet to rule on the matter, Advocate General Szpunar handed down his opinion before the CJEU's determination on this long-standing matter.

The case of Stichting Brein v Ziggo BV concerned Stichting Brein, a Dutch organization that focusses on combatting the illegal exploitation of copyright protected works, and to protect the interests of rights holders. Ziggo BV and the other defendant, XS4ALL Internet BV, are Dutch internet service providers who largely control the Dutch market. Stichting Brein took the ISPs to court, applying to compel the ISPs block all internet access to the Pirate Bay under the Dutch transposition of Article 8 of the InfoSoc Directive.

What the CJEU had to answer were two questions that the Court summarized as follows: "… the referring court raises in reality the matter of the liability of operators of indexing sites of peer-to-peer networks for copyright infringements committed in the context of the use of those networks. Can those operators themselves be regarded as being the originators of those infringements, which would mean they are directly liable (first question)? Or, even if they are not directly liable, can an order be made blocking access to their websites, which, as I shall explain below, requires a form of indirect liability (second question)?"

The first aspect of the larger question is whether the provision of indexed metadata relating to P2P files through a search engine is a communication to the public. As has been firmly established, a communication to the public comprises of two criteria, in essence (1) an act of communication and (2) it is made to a public.

The Advocate General first set out the basics, where an 'act of communication' emphasises the essential role of the player originating the communication and the deliberate nature of their intervention (including full knowledge of the consequences of their actions), without which the customer would not have gained access to the work and therefore does. The nature of the communication is also important, with rights holders also being able to prevent the infringement even if the communication, at the choosing of the end-user, hasn't taken place yet.

A 'public' is one where the communication is intended for an indeterminate, but fairly large number of recipients; however, as was discussed in Svensson, the public has to be a new one, and the provision content to the entire internet would not necessarily amount to a 'new' public. Even If provided for the internet at large, you still have to consider the intention of the communicator and the public it wanted to reach during the communication.  If the communication is made without the authorization of the rights holder, it's clearly made to a new public they didn't consider, making the public a 'new' one for this purpose.

Online piracy is real and scary

The AG then moved onto the actual application of the above to P2P networks. In his view, a copyright protected work would be communicated to the public via a P2P network, as; firstly, the works are made available on the computers of the network users, so any other user can download them; Secondly, the amount of users in P2P networks and using the Pirate Bay clearly would be an undefined and significant number of persons; and lastly, as no consent was given by the rights holder to share the works on these systems or websites, the works have been distributed to  a 'new public', since "if the author of the work has not consented to it being shared on a peer-to-peer network, the users of that network constitute by definition a new public". While this amounts to a clear communication to the public, the AG had to still decide, in his opinion, who the works originated from (i.e. the users or the indexing website).

The role of the indexing websites was also deemed necessary by the AG, since "...[infringing] 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 them. He also highlighted the need for knowledge by the website operators, and specified that "...from the moment that operator has 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". The website operators' intervention is therefore necessary and deliberate (at least in the instances as detailed above), meaning the operators would be jointly with the user making the works available and thus communicating them to the public.

The AG then moved onto the second question, discussing the need to block access to websites such as the Pirate Bay (albeit only in the instance should the CJEU disagree with his answer to the first question).

In his view, Article 8 presupposes a link between the infringement and the subject of the injunction, meaning the services of the intermediary are used to facilitate the infringement happening through the website in question. He concluded that, in the light of this dependant relationship, the intermediary has to prevent access to the site to protect itself from liability.

He also added that this would not, potentially at least, impinge on the users' fundamental rights. The blocking of websites like the Pirate Bay would be proportionate to the significance and seriousness of the copyright infringements committed on that site. The block would also not prevent legitimate uses of P2P technologies, or the finding of legally shared files online. The measures themselves, ultimately, will have to be "...proportionate to the significance and seriousness of the copyright infringements committed, which is a matter for the national court to determine".

The AG's opinion sets the scene for the CJEU, and clearly will envision the decision going the way of the rights holders. Admittedly, this would seem like the most logical solution to a complex and difficult problem to tackle; however, measures would indeed have to be proportionate and non-restricting to the public at large. This writer would envision a possible avalanche of blocking injunctions being pushed after a decision to the affirmative; however, an EU-wide block seems highly unlikely, as application has to be done on a national basis.

Source: IPKat