Amsterdam Court of Appeal issues dynamic blocking injunction in long-running dispute between BREIN and ISPs

http://ipkitten.blogspot.com/2020/07/amsterdam-court-of-appeal-issues.html
The Amsterdam Court of Appeal (CoA) recently issued a dynamic blocking injunction against two Internet Service Providers (ISPs), Ziggo and XS4All, aimed at preventing access to notorious torrent site The Pirate Bay [Dutch decision here, English translation here, courtesy of BREIN]. The decision is part of a long-running dispute, which started in 2010 and led to the landmark ruling by the Court of Justice of the European Union (CJEU) in C-610/15 Stichting Brein [Katposts here and here].

The decision is the latest in a series of judgments by European courts which impose, in one form or another, blocking injunctions to prevent large-scale online copyright infringements [Katpost on a recent decision from Sweden here, and see here for a recent review article by Berdien van der Donk]. Not even ten years ago, such injunctions were controversial, but following a series of CJEU rulings – in particular, C-314/12 UPC Telekabel Wien – they now seem commonly accepted.

The Amsterdam CoA’s decision is interesting because it applies, in great detail, the UPC Telekabel Wien framework to the case at hand.

The CoA’s analysis and application of UPC Telekabel Wien

The facts of the case are straight-forward: BREIN is a Dutch rightsholders’ society which brought suit against two of the largest ISPs in the Netherlands, Ziggo and XS4All. It requested an injunction that would make it impossible for subscribers of Ziggo and XS4All to access web addresses that directed to The Pirate Bay.

In 2012, BREIN’s claims for relief were granted by the District Court of the Hague [here]. But its decision was overturned by the Hague Court of Appeal in 2014 [here]. The Dutch Supreme Court partially reversed the Hague CoA and referred questions to the CJEU in 2015 [here], which resulted in the Stichting Brein decision. After the CJEU’s decision, it reversed the outstanding parts of the Hague CoA’s decision, and referred the case back for a final decision to the Amsterdam CoA [here].

Distinction with UPC Telekabel Wien

The Amsterdam CoA noted that the CJEU laid down the following requirements for a dynamic injunction against ISP’s in UPC Telekabel Wien:

1. The requested measures do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available;
2. The requested measures have the effect of preventing unauthorised access to protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users from accessing that subject-matter;
3. The addressee of the injunction must have the possibility to maintain before the court that the measures taken were indeed those which could be expected of him in order to prevent the proscribed result; and
4. National procedural rules must provide a possibility for internet users to assert their rights before the court once the implementing measures taken by the internet service provider are known.

The Amsterdam CoA held that requirements (3) and (4) resulted from the fact that in UPC Telekabel Wien, the rightsholder asked for a result-oriented measure, i.e. blocking all access to the infringing content, without specifying a particular manner in which this was to be done. It distinguished the case before it on the grounds that BREIN had provided a list of specific IP addresses to be blocked.

The CoA therefore held that the rights of the ISP’s and their users were sufficiently safeguarded in the process of deciding on the requested measure, so that it was not necessary to allow them separate opportunities to challenge the injunction as outlined under (3) and (4). If the circumstances were to alter materially, the CoA held, the affected parties had ample opportunities to bring the case before the court anew.

It then proceeded to apply the tests outlined under (1) and (2).

Unnecessary deprivation of access to lawful content?

According to the CoA, the Pirate Bay represents only a “miniscule” part of the information available on the internet. The injunction would block all access for users to this site, including to potentially lawful content shared on it.

However, given the large-scale copyright infringement performed through this site, coupled with persistent efforts at evading enforcement attempts, the CoA ruled that the denial of access to the lawful content was justified by the scale and severity of the copyright infringements that occur on The Pirate Bay.

Preventing or making more difficult access to protected subject-matter?

The Amsterdam CoA held that a blocking measure can reasonably be assumed to discourage at least some users from accessing the site. To the extent that some others will seek out mirrors of The Pirate Bay, those will be caught by the injunction as well because its scope is to be regularly amended as new mirrors appear. It is therefore reasonable to assume that those users will, at some point, stop trying so that also against them the measure is effective.

Ziggo and XS4All had argued that users will simply switch to other torrent sites, so that the injunction would likely not result in an overall decrease in copyright infringements. The CoA did not accept the argument: in light of the high level of protection for copyright owners that the EU legal framework seeks to achieve, stopping substantial infringements through one website is justified, even if some continue on other sides. In addition, BREIN may legitimately pursue a step-by-step approach, whereby it starts with obtaining relief against one site – The Pirate Bay – and in future cases acts against others.

Freedom to conduct a business

Ziggo and XS4All also invoked their rights under Article 16 of the Charter of Fundamental Rights of the European Union.

The CoA took from UPC Telekabel Wien that, even if a blocking injunction imposes substantial costs on the ISP, it does not necessarily follow that its rights under Article 16 are unduly trumped by those of the rightsholders under Article 17. In this case, Ziggo and XS4All had stated that the costs of complying with the blocking injunction amounted to EUR 50 000 – 60 000 per year. According to the CoA, those are relatively insubstantial sums for the ISPs which do not cause an impermissible restriction of their rights under Article 16.

Other issues

With this, the CoA held that BREIN was entitled to a dynamic blocking injunction under the framework laid down in UPC Telekabel Wien.

That outcome was not altered by the various other arguments that the ISPs advanced, which included:

[The CoA] orders Ziggo and XS4all to cease and desist their services used to infringe copyright and neighbouring rights of rightsholders whose interests are defenced by Brein, within 10 (ten) working days, by blocking and keeping blocked access by their clients to the domain names/(sub) domain names and IP addresses through which The Pirate Bay operates, namely:

(Sub)domain names:
(i) www.thepiratebay.org
(ii) thepiratebay.org
1Pv4 IP addresses:
(iii) 104.27.216.28
(iv) 104.27.217.28
1Pv6 IP addresses:
(v) 2400:cb00:2048:1::681b:d81c (vi) 2400:cb00:2048:1::681b:d9lc
And the (sub)domain names included in the list submitted to the court by Brein as exhibit 161, which is attached to this judgment, but only as long as The Pirate Bay operates through these (sub)domain names and IP addresses;

[and]

Orders Ziggo and XS4all, in the event that The Pirate Bay is to operate via other/additional IP addresses and/or (sub)domain names than those aforementioned, to block and keep blocked access by their customers to these other/additional IP addresses and/or (sub)domain names, within 10 (ten) working days after notification of the correct IP addresses and/or (sub)domain names by Brein by fax, registered letter or e-mail to Ziggo and XS4all separately, always as from the time of arrival of the message concerned at Ziggo and XS4all respectively.

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