## Facts

- Stichting Brein, a Dutch organization representing copyright and related-rights holders, sought court orders requiring Ziggo BV and XS4ALL Internet BV (internet access providers) to block access to The Pirate Bay (TPB) domains and IP addresses.
- TPB operated a BitTorrent-based platform that indexed and categorized torrent files, offered a search function, and enabled users to locate and share protected works through a peer-to-peer network.
- Torrent files provided metadata enabling users to find and download file fragments stored on other users’ computers.
- A substantial portion of the torrent files available through TPB related to works made available without rightholder authorization.
- TPB’s operators were aware of widespread infringement, publicly encouraged users to copy protected works, and operated the platform for profit (including advertising revenue).
- A Dutch trial court ordered the requested blocking measures; an appellate court reversed; the Netherlands Supreme Court referred questions to the Court of Justice of the European Union (CJEU) on whether TPB’s operation constituted a “communication to the public” and the implications for intermediary injunctions.

## Issues

1. Whether making available and managing an online indexing and sharing platform like TPB constitutes a “communication to the public” under Article 3(1) of Directive 2001/29/EC.
2. If so, whether internet access providers whose services are used to access such a platform may be subject to injunctions as “intermediaries” under Article 8(3) of Directive 2001/29/EC and Article 11 of Directive 2004/48/EC.

## Decision

- The CJEU held that the making available and management of a platform like TPB constitutes an act of “communication to the public” within Article 3(1) of Directive 2001/29/EC.
- The court reasoned that TPB’s operators intervened deliberately and with knowledge of infringement by indexing, organizing, and facilitating user access to protected works, playing an essential role in making those works available.
- TPB’s user base constituted an indeterminate and sufficiently large number of recipients, satisfying the “public” element.
- This interpretation supports, in principle, the availability of injunctions against access providers as intermediaries whose services are used for infringement, leaving application and scope of blocking orders to the referring national court.

## Legal Principles

- “Communication to the public” under Article 3(1) requires (1) an act of communication and (2) communication to a public, and is interpreted broadly to secure strong copyright protection.
- A platform operator may commit an act of communication where, with knowledge of infringement, it provides and manages tools that give users access to protected works, even if the files are uploaded and shared by users.
- An operator’s essential role in enabling effective location and sharing of protected works, combined with awareness of unauthorized availability and profit-oriented operation, supports a finding of communication to the public.
- Where third-party infringement is facilitated through an intermediary’s services, rightholders may seek injunctions against the intermediary under Article 8(3) of Directive 2001/29/EC and Article 11 of Directive 2004/48/EC, subject to national procedural rules and applicable rights constraints.

## Conclusion

The CJEU determined that operating and managing a torrent-indexing platform like The Pirate Bay amounts to a “communication to the public” under EU copyright law, thereby supporting the legal basis for national courts to order access providers to block user access to such platforms as intermediaries used for infringement.


Stichting Brein v. Ziggo BV, Case C-610/15 (C.J.E.U. 2017)