This is is the very issue on which the Court of Justice of the European Union (CJEU) will have its say, as last Friday the Hoge Raad (Dutch Supreme Court) made a reference for a preliminary ruling [here] in the context of long-standing litigation between Dutch anti-piracy organisation BREIN and access providers Ziggo and XS4ALL.
This Kat has received an unofficial English translation of the questions referred, provided by the invariably helpful anonymous reader who tweets as Pacta Sunt Servanda (@TreatyNotifier) [thanks also go to Twitter users @BasMunnik and @remych]:
As soon as more information becomes available, this blog will comment on it. Stay tuned!1) Does it constitute a communication to the public in the sense of Article 3(1) of the InfoSoc Directive by the manager of a website when on that website no protected works are present, but a system exists (..), in which meta data regarding protectected works is available, indexed and/or categorized in such manner that the users can trace, uplaod and downlaod protected works?
2) If that is not the case, does Article 8.3 of the InfoSoc Directive and Article 11 of the Enforcement Directive allow an order to an intermediate as meant in those provisions, if such an intermediate facilitates actions of third parties in a manner as described in question 1?