Ziggo and XS4ALL Must Block Access to The Pirate Bay
A discussion of the judgment of the Court of The Hague of 11
January 2012 in BREIN/Ziggo-XS4ALL
In 2010, BREIN tried to obtain a court order in preliminary
relief proceedings forcing Ziggo and XS4ALL to block access to The
Pirate Bay. This claim was denied at the time, and BREIN was left
empty-handed, despite the fact that the website of The Pirate Bay
was prohibited in the Netherlands. You will find a critical report
from me about the outcome of those preliminary relief proceedings
here.
A number of criminal-law and civil-law judgments have been
rendered against The Pirate Bay, in the Netherlands and abroad. The
Pirate Bay does not respect those judgments, but simply continues
the operations that have been prohibited by the court. In these
proceedings on the merits against Ziggo and XS4ALL, BREIN has now
been successful (read the judgment (in Dutch)
here). The Court has ordered Ziggo and XS4ALL
to block access for their clients to the many domain names and IP
addresses through which The Pirate Bay operates. If The Pirate Bay
will start using other IP addresses or domain names in the future,
they must also block access to those, after having received a
letter from BREIN to do so. Ziggo and XS4ALL do not have a general
obligation to filter; the obligation only relates to the blocking
of specific IP addresses and domain names.
The copyright-law analysis made by the Court is rather simple:
90% to 95% of the materials on The Pirate Bay are illegal, and in
practice individual downloaders (downloading is allowed) are always
uploaders as well (but uploading is copyright infringement). 30% of
the subscribers of Ziggo and 4.5% of the subscribers of XS4ALL are
infringing copyrights this way. Thus, these two internet providers
qualify as ‘intermediaries whose services are used by a third party
to infringe copyrights’, and the law provides a specific
arrangement for this. A claim against such an intermediary may only
be allowed if the principles of proportionality and subsidiarity
are observed. According to the Court, these principles are observed
in this case.
The requirement of subsidiarity has been met because BREIN has
no other, less drastic measure available by which access to The
Pirate Bay may be blocked. BREIN has already taken appropriate
legal measures to close access to The Pirate Bay, for example
against the hosting provider, but The Pirate Bay still remains
online. And Ziggo has refused in the past to provide name and
address details of its subscribers voluntarily, with which BREIN
could take action against individual users. BREIN therefore has an
interest in suing Ziggo and XS4ALL.
When assessing proportionality, the first thing to consider is
the interests of the subscribers of Ziggo and XS4ALL, which must be
weighed against the interests of the rightholders. The Court does
not regard downloading of ‘illegal materials’ as an interest that
counts. A question mark is in order here, given the fact that –
under current Dutch law – the user who downloads
copyright-protected materials is not infringing copyright, and at
the moment there is a majority in Parliament that wants to keep it
that way. According to the Court, the legal content offered by The
Pirate Bay really amounts to nothing; that content is not what
attracts users to The Pirate Bay. Consequently, the interests of
the subscribers are outweighed by the interests of the
rightholders.
The Court has also weighed the interests of Ziggo and XS4ALL
against the interests of BREIN. Blocking The Pirate Bay is not
complicated technically and does not involve high costs for Ziggo
and XS4ALL, according to the Court. Therefore, also in this
weighing-up the interests of the rightholders, represented by
BREIN, have precedence.
Another interesting point is that the compensation of the full
legal costs (amounting to almost €150,000) claimed by BREIN was
denied, because Ziggo and XS4ALL themselves do not commit copyright
infringements or unlawful acts. For BREIN, this will only cast a
small shadow over the party. This judgment is a big victory for
BREIN. BREIN has finally succeeded in obliging internet providers
to block access to The Pirate Bay for their subscribers. Soon, many
Dutch net surfers will have a very hard time to get access to The
Pirate Bay.