IP and TV series: Netflix's 'The Playlist' shows the rise of Spotify, which turned music piracy into licensed streaming

There was a time when the biggest concern of artists struggling with the machinations of the music industry was "just" the impossibility of being creatively free. When he was inducted into the Rock and Roll Hall of Fame in 2004, Prince said, "When I first started out in the music industry, I was most concerned with freedom. Freedom to produce, freedom to play all the instruments on my records, freedom to say anything I wanted to". In a tribute to George Harrison that night, Prince then played a guitar solo in "While My Guitar Gently Weeps" that stunned the room (see here - at min 3:27) and showed an interesting interpretation of what "freedom" means. In a time when the internet existed but the main income of artists and performers was still from selling "copies" of their albums, records, episodes and concerts, he probably would not have even been able to contemplate the existence of a "streaming service" that might change the rules just a few years later. When Prince died, the digital revolution in the music business was already a reality - even if it was going through a struggle like never before with the impressive rise of piracy in the early 00s and the revolution of peer-to-peer platforms (remember Napster, Emule, WinMX, BitTorrent?).

It was at that time that Megaupload was seized for piracy, Instagram was only available on Android devices, "digital" music was listened to on YouTube and Last.Fm. DJs used to buy track after track legally on dedicated digital music marketplaces (e.g. Beatport, Tracksource, junodownload, etc.), although the vast majority of the public began to prefer downloading music illegally rather than buying it legally. 

Against this historical backdrop, the just-released Netflix series "The Playlist" tells the story of Daniel Ek, who wished to contrast music piracy by creating an online database with unlimited access to the music of all the world's artists and bands, with impressive connection and playback speeds - without users having to directly buy copies of their favourite artists' albums. Spotify: the best invisible, portable, internet-connected and fastest "instant jukebox".

I realised that you can never legislate away from piracy Laws can definitely help, but it doesn't take away the problem. The only way to solve the problem was to create a service that was better than piracy and at the same time compensates the music industry - that gave us Spotify”

Daniel Ek

Edvin Endre plays Daniel Ek, the founder of Spotify © 2022 Netflix, Inc.

This was indeed the main reason why "The Playlist" cannot tell the story of Ek's journey without referring to the legal background in which the well-known platforms such as "The Pirate Bay" (TPB) were involved and whose role in music piracy had a significant impact. 

Pirate Bay is an online index for digital content of entertainment media and software. Founded in 2003 by Swedish think tank Piratbyrån, The Pirate Bay allows visitors to search, download and contribute magnet links and torrent files that facilitate peer-to-peer file sharing between users of the BitTorrent protocol. The Pirate Bay has sparked controversy and debate over legal aspects of file sharing, copyright and civil liberties, and has become a platform for political initiatives against established IP laws, as well as a central figure in an anti-copyright movement. The website has been shut down several times and its domains confiscated, forcing it to continue operating under a series of new web addresses.

As most copyright aficionados will recall, the website was also the protagonist of one of the most important judgments of the CJEU in relation to acts of communication to the public of protected works by the operator of a website - Stichting Brein v Ziggo, in Case C-610/15 (which we reported on at the time - see here). In this case, AG Szpunar, following the reasoning of the Court in previous decisions (such as GS Media BV v Sanoma Media Netherlands BV and Others, C-160/15 and in the Opinion of AG Campos Sánchez-Bordona (here) in Filmspeler, C-527/15, later confirmed by the CJEU: here and here), concluded that TPB operators would indeed facilitate the discovery of copyright-protected works made available unlawfully by third parties under Article 3(1) of the InfoSoc Directive. The Court agreed and held that indeed their actions would therefore fall within the scope of Article 3(1) of the InfoSoc Directive. From the perspective of a national court, TPB operators would therefore be primarily liable for copyright infringement.

The impact of the Pirate Bay case on future decisions on ISP liability has been significant - including for the implementation of "dynamic blocking injunctions", which allow the content of certain providers where essentially the same infringing website is available with a different IP address or URL immediately after the order is issued, and which are drafted in such a way as to extend to the new IP address or URL without the need for new court proceedings to obtain a new injunction (on this subject, see EUIPO, Study on Dynamic Blocking Injunctions in the European Union, 2021). Among other cases, in the Netherlands, dynamic blocking injunctions were issued against access providers for blocking The Pirate Bay by including the following definition: ‘in the event that The Pirate Pay becomes accessible through other/additional IP addresses, to block access by their customers to such other/additional IP addresses and/or (sub)domain names, and keep them blocked, after notification of the correct IP addresses and/or (sub)domain names by Brein to each of the Providers individually’ (we also reported on this – see here).

For all lovers of these subjects, "The Playlist" will give you access to your memories from this period, as well as to the activity of courts in these areas. The series is based on the concept of playlists, with each main character being a 'song' from a different album. The structure is not typical for a series, but follows the music. Each episode corresponds to one of the six protagonists who takes the helm and takes us along in their narrative, where you hear some music from that time, especially the most representative piece that this InternKat proposes: “Röyksopp - What Else Is There?”. 

Where were you in 2007?