ISPs Must Block Piracy Websites, Says European Court of Justice

[reaper]

The European Court of Justice ruled today that an ISP may be ordered to block its customers' access to a copyright-infringing website such as The Pirate Bay, etc. However, it will be the National courts that will still have the final say in the matter.

The ruling by the ECJ states:

”In today’s judgment, the Court replies to the Oberster Gerichtshof that a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder is using the services of the business which provides internet access to persons accessing that subject-matter. Thus, an ISP, such as UPC Telekabel, which allows its customers to access protected subject-matter made available to the public on the internet by a third party is an intermediary whose services are used to infringe a copyright.

The Court notes, in that regard, that the directive, which seeks to guarantee a high level of protection of rightholders, does not require a specific relationship between the person infringing copyright and the intermediary against whom an injunction may be issued. Nor is it necessary to prove that the customers of the ISP actually access the protected subject-matter made accessible on the third party’s website, because the directive requires that the measures which the Member States must take in order to conform to that directive are aimed not only at bringing infringements of copyright and of related rights to an end, but also at preventing them.”

According to Telecompaper, The ECJ had been asked to interpret EU copyright law by Austria's Supreme Court regarding a case between ISP UPC Telekabel Wien and film companies Constantin Film Verleih and Wega-Filmproduktionsgesellschaft. The film companies wanted the ISP to block access to the Kino.to site, but UPC Telekabel argued that it did not have a business relationship with the operators of kino.to and that it had never been established that its own customers acted unlawfully.
The press release from the ECJ concluded with:

”The Court therefore holds that the fundamental rights concerned do not preclude such an injunction, on two conditions: (i) that the measures taken by the ISP do not unnecessarily deprive users of the possibility of lawfully accessing the information available6 and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging users from accessing the subject-matter that has been made available to them in breach of the intellectual property right7. The Court states that internet users and also, indeed, the ISP must be able to assert their rights before the court. It is a matter for the national authorities and courts to check whether those conditions are satisfied.”

We know that there are already numerous pirate sites and domains blocked by ISPs in several countries around EU and in the U.K., sites like The Pirate Bay and KickAss Torrents, etc. Today’s ruling suggests that any decision must be fairly balanced and has to satisfy the national authorities and courts. We’ll have to wait and see how the ISPs handle this.