Following on from its recent decision in Filmspeler, the CJEU has handed down its judgment in Stichting Brein v Ziggo, C-610/15 (The Pirate Bay), concluding that operators of the online sharing platforms are making a 'communication to the public' within the meaning of the InfoSoc Directive, and hence an actionable infringement.
Quoting extensively from previous cases in this area, including Filmspeler, the CJEU summarised that it can be inferred that "as a rule, 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) of [the InfoSoc] Directive."
In this case, the CJEU concluded that, notwithstanding the fact that the operators of The Pirate Bay do not host or link to infringing files, its hosting, indexing and filtering of 'tracker' files, which tell users of individual BitTorrent apps which other BitTorrent users they may link to in order to download large (generally copyright protected) files, as well as offering search functionality, meant that they played an "essential role in making the works in question available".
The making available and management of an online peer-to-peer sharing platform went beyond 'mere provision' of physical facilities for enabling or making a communication and "must be considered to be an act of communication" for the purposes of Article 3(1) of the InfoSoc Directive.
The CJEU considered that the platform operators "could not be unaware" that the platform provides access to works published without the consent of rightholders and that the communication was to, at the very least, all of the platform's users. Accordingly, the communication was to a 'new public' and it could not be disputed that this was carried out with the purpose of obtaining a profit.
The CJEU therefore concluded that "the making available and management of an online sharing platform, such as [The Pirate Bay], constitutes a ‘communication to the public’, within the meaning of Article 3(1) of [the InfoSoc] Directive".
This judgment accords with Mr Justice Arnold's 2012 decision concerning this platform, in which he stated "In my judgment, the operators of [The Pirate Bay] do authorise its users’ infringing acts of copying and communication to the public. They go far beyond merely enabling or assisting." (Dramatico Entertainment Ltd and others v British Sky Broadcasting Ltd and others  EWHC 268 (Ch), at paragraph 81).