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

A Torrential Result - No Requirement to Censor Torrent Search Results, Says Paris Court

Just the mention of 'torrent' files can send shivers down the spines of rightsholders and their legal representatives. Often synonymous with online copyright infringement, the BitTorrent protocol is actually a very legitimate way to send and receive files without having specific hosting facilities to do so, saving on costs and often bandwidth. In a nutshell, the protocol allows for an individual or entity to download a file from several sources, taking only pieces and ultimately compiling them into one completely copied file. Even though entirely legitimate, the protocol has been used by file sharers for some time, allowing for the efficient and fast downloading of illegal files from the Internet, often utilizing websites such as The Pirate Bay (or any other search engine, for that matter) to find the torrent files linking to the illegal content. With this availability so ubiquitous, could rightsholders censor search results on search engines to prevent copyright infringement?

While there are no official translations of the case available, this writer has used machine translation for the purposes of providing quotations, and any translations should be regarded as unofficial and (possibly) not fully accurate.

Two recent cases in France aimed to deal with this issue head-on, where the French music producers' association, Syndicat national de l’édition phonographique (SNEP), took both Google and Microsoft (the decisions are only available in French) to court. Under Article L336-2 of the Code of Intellectual Property, a court can, upon application, force an intermediary to take all appropriate measures to prevent or stop such infringement, including, potentially, allowing and/or facilitating (through search results) access to torrent files.

Dealing with the case against Google, the Parisian Court found that, although Google France had no direct control over search results (ultimately controlled by its American patent company, Google Inc.), it still "...develops a commercial activity, which ensures funding for services offered free to users and participates operation the search engine business". They could not therefore, be exonerated from the claim brought by SNEP.

Leading the charge against Internet censors

The Court then moved onto discussing the admissibility of the claim, they quickly dismissed SNEP's claim due to a lack of ability to represent the parties in question (the artists named were Kendji Girac, Shy’m, and Christopher Willem). This was largely due to the SNEP's role as an enforcement provider for a select segment of the audio entertainment industry, and would not therefore qualify as a 'professional defense body' per Article L336-2. The Court ultimately rejected the case against Google, not forcing the search provider to censor the results containing torrent files to infringing files.

In a similar case, Microsoft faced a challenge in relation to its Bing search engine, which also provided access to results containing infringing music files from the aforementioned artists.The Parisian Court would not exonerate the company on similar grounds as Google's subsidiary, as the companies were tightly woven into the business of providing the search facilities.

The Court further rejected an assertion that Microsoft would be acting as a subsidiary by not blocking access to the infringing content, as Article L336-2 imposes no duty on companies to prevent access to infringing content. Although asserted by SNEP, Microsoft had not failed to comply with their notification procedure in Article 6-l-5 of the Law of Confidence in the Digital Economy, as the Court deemed that any action under Article L336-2 would be a separate action from the notification procedure. Ultimately, the Court rejected SNEP's entire case, as the censoring of all pages containing torrent links to infringing materials (concerning the artists in question now and in the future), would be "...general surveillance measure[s] and could cause the blocking of legitimate sites", even under the guise of protecting legitimate interests. They also added that the measures would be ineffective, and are not necessary, as the search facilities is seldom used to search for the artists in question with the term "torrent", which is quite easy to circumvent if needed.

Although this writer knows very little about French law, the cases seem quite interesting, especially in the context of the wider Internet. Allowing for the blocking of specific terms and the term "torrent" in a much broader scale would clearly impact the Internet experience many of us enjoy, be the use legitimate or not. The Parisian Court seems to have made a decision stemming from pragmatism and a deeper understanding of the Internet. While rightsholders would be dissatisfied with the decision, one can appreciate the balance that has to be struck when it comes to more overarching censorship measures.

Source: Ars Technica

Domain Registrar Faces Infringement Liability in Germany

Internet Service Providers have, for a long time, been the favorite target of copyright holders simply because they are often the conduit between the infringer and the material which is being illegally copied, although their liability as secondary infringers has been rejected since. The Internet provides a web of connectivity between a multitude of actors, such as ISPs, computer manufacturers and others, who in some ways, do enable the infringement of copyright, albeit not as their primary function. As with the former Betamax recorders, the simple function of potentially enabling infringement does not incur liability, arguably at least in most instances, however a new challenge was set against web domain registrars in Germany.

In a recent decision (which can be found here, unfortunately only in German), the German Regional Court of Saarbrücken had to decide on the liability of domain registrars, and whether they could be held liable as secondary infringers should the domain owners facilitate the aforementioned infringement. The case concerned the website h33t.com, which acts as a torrent tracker site, much like the more notorious Pirate Bay. The copyright holders of Robin Thicke's song "Blurred Lines", Universal Music, took on the domain registrar Key-Systems, who registered h33t's domain.

Ed was confused about domains

In their decision the Court saw that domain registrars could face liability if the domains they have registered facilitate the infringement of copyright. If they are notified of the potential infringement of copyright, and choose to do nothing about the infringements, they could face liability. The Court imposed a duty to investigate onto domain registrars; a duty which can be argued to be quite onerous, especially for bigger registrars which manage vast numbers of domains. Key-System's general council, Volker Greimann, commented on the decision: "The courts’ definition of what is obviously violating is however extremely broad and the duty to act is expanded to deactivation of the entire domain even if only one file or link is infringing... If left unchallenged, this decision would constitute an undue expansion of the legal obligations of each registrar based in Germany, endangering the entire business model of registering domain names or performing DNS addressing for third parties". One can agree with Mr. Greimann as to the onerous nature of the new duty imposed on registrars, especially when considering the vagueness of the duty and the potential numbers of websites which might infringe copyright in one way or another.

The Court did mention that the infringements in relation to h33t were "...obvious and easy to identify", potentially presenting registrars with protection in cases where infringements are not obvious or are a result of negligence or ignorance. The Court in this instance ordered Key-Systems to prevent the infringement; however what those measures are remains unclear to this writer. Even though the domain is shut down by Key-Systems, its transition to another service outside of Germany can be said to be quick and painless - making the duty to investigate and take action both onerous, and arguably frivolous, as infringers will merely change service providers if their activities can be said to be illegal. Through this Mr. Greimann's argument of it hurting German domain registrars could be said to carry some merit.

Secondary liability has been a hot question since peer-to-peer services have made infringement much easier, and websites which provide users with, for example, torrent links, have become abundant. Whether liability should be extended to all middle actors can be argued to be potentially damaging to the Internet and its function. This writer does not have much insight into German law specifically, and people who might want to hear Universal Music's general council, Mirko Brüß's, arguments can refer to his opinion post here (again in German only).

Source: Bloomberg