The Dutch Supreme Court has thrown out the existing blocking order against The Pirate Bay, calling for a do-over at the lower court. This means that the Court of Amsterdam will have a fresh look at the matter while taking several recent European blocking related decisions into account.
The Pirate Bay is arguably the most widely blocked website on the Internet. ISPs from all over the world have been ordered by courts to prevent users from accessing the torrent site.
In most countries courts have decided relatively quickly, but not in the Netherlands, where there’s still no final decision after eight years.
A Dutch court first issued an order to block The Pirate Bay in 2012, but this decision was overturned two years later. Anti-piracy group BREIN then took the matter to the Supreme Court, which subsequently referred the case to the EU Court of Justice, seeking further clarification.
After a careful review of the case, the EU Court of Justice decided last year that The Pirate Bay can indeed be blocked.
The top EU court ruled that although The Pirate Bay’s operators don’t share anything themselves, they knowingly provide users with a platform to share copyright-infringing links. This can be seen as “an act of communication” under the EU Copyright Directive.
This put the case back with the Dutch Supreme court for a final say. At least, that appeared to be the case.
The Supreme Court, however, decided that the case should get a do-over. In a decision released late last week, it sent the case back to the Court of Amsterdam, which must now take a fresh look at the matter.
This decision follows the advice Advocate General Van Peursem issued earlier this year.
Since the Dutch case began there have been several blocking related decisions in Europe which clarified when such measures are warranted. This means that the case will start over from scratch, but with this new context and the EU court orders as further clarification.
Generally speaking, it means that the rights of copyright holders will be carefully weighed against those of the ISPs and the public in general.
For now, however, The Pirate Bay remains blocked in the Netherlands as the result of an interim injunction BREIN obtained last year. This blockade will be lifted if the Internet providers win the new case, but based on current jurisprudence in Europe, that might not be easy.
“TPB will continue to be blocked at least until the final decision under the provisional blocking injunctions that BREIN obtained against the providers at the end of 2017 and beginning of this year,” BREIN’s Tim Kuik informs TF.
The Supreme Court rules that, since TPB is infringing copyright directly, BREIN may demand from providers that access to it be blocked.”