Can ISPs be asked to block access to The Pirate Bay?

Can an internet service provider (ISP) be requested to block access to a torrent site like The Pirate bay?

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]:
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?
As soon as more information becomes available, this blog will comment on it. Stay tuned! 
Can ISPs be asked to block access to The Pirate Bay? Can ISPs be asked to block access to The Pirate Bay? Reviewed by Eleonora Rosati on Sunday, November 15, 2015 Rating: 5


  1. Business models may fall.

    At least in the U.S., such "data" cannot be stopped at the border (or at least not so by the ITC).

    Given that, and given (again - in the U.S. perspective) the plain fact that Fair Use implies that the underlying data itself - in it whole, complete and unadulterated form is a right to be copied - and once so copied, control of the digital goods is simply lost (as discussed on a recent thread concerning 3D printing); we are but seeing merely the first section of IP law running into the "future" of uncontrollable manufacturing: here, copyright and copying as a form of manufacture.

    IP law must evolve.

    Would it not behoove ALL of us to grasp the entirety of this unstoppable evolution, take a step back, and develop a more unified approach to treatment of IP rights in what will be - and shortly so - a truly uncontrollable (within any border or sovereign) reality?

  2. The Cat that Walks by HimselfMonday 16 November 2015 at 16:44:00 GMT

    RE: IP law must evolve.

    Reading this case creates an impression that a piece of legislation is missing and, as a result, some way around is taken.

    The facts of the case make me think about a road owner who has to block the road for those who violate speed limits.

  3. The Cat that Walks by HimselfTuesday 17 November 2015 at 17:07:00 GMT

    Article 3(1) […] including the
    making available to the public of their works in such a way
    that members of the public may access them from a place and
    at a time individually chosen by them.

    It would be interesting to discuss how this condition could be fulfilled by providing 'magnet links' of copyrighted content.

    allow an order to an intermediate
    I wonder whether Internet Service Providers are intermediaries in sense of Article 11.


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