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The Hague Appeals Court has reversed the order prohibiting the access of the The Pirate Bay website by major Internet Service Providers (ISP).

The_Pirate_BayThe Pirate Bay website must be one of the most censored sites in the world. By providing links to videos or files that infringe copyright, the website has been the target of many appeals from the Hollywood funded anti-piracy group BREIN. After trying to force the site to self censor links infringing copyright, the Dutch anti-piracy group filed a complaint ordering Ziggo, one of the main ISP in the Netherlands to block all access to the website. Joined by XS4ALL, another Dutch ISP, they were ordered in 2011 to stop all links accessing the site.

The Hague lower court had indeed agreed with BREIN, saying that the website was often used to find copyrighted works, and to assist people in downloading copyrighted files. The ISP argued that they shouldn’t act as censors, but the court noted that it was not technically difficult for the ISP to block the addresses, as BREIN requested. 

However, on Tuesday the 28th of January, the Court of Appeal revoked the previous decision basing its own decision, not only on the results of the TNO’s research and the Baywatch report by the University of Amsterdam, but also on the European Union Charter of Fundamental Rights.

By studying research or the report, the Court observed that the prohibition did not stop the users from downloading copyright protected files as they found ways to circumvent the prohibition. If it wasn’t by using Virtual Private Network (VPN) that masks the location of connection to internet, the internet users would find other file-sharing services. Even if the block did decrease the traffic to The Pirate Bay, the amount of torrenting had not. 

Furthermore, the Court’s ruling points out that “the blockade imposed a violation of the basic freedom of commercial activity of the providers with insufficient justification” along with “it is of great significance that the providers themselves were not violating copyrights”.

Thus the Court declares that The Pirate Bay ‘s ban by ISP was disproportionate and ineffective and therefore overturns the blocking order and sentences the anti-piracy group BREIN to pay 400,000 euros of the ISP’s legal costs.

XS4ALL says it is satisfied with the court’s verdict because it will allow freedom of access to information, and that ISPs will be able to fulfil their role of neutrality.

BREIN has declared that it may lodge a further appeal with the country’s Supreme Court. Tim Kuik, BREIN director, also notes that “the purpose of blocking The Pirate Bay is obviously to reduce copyright infringement via The Pirate Bay. It is paradoxical that although the court finds that this goal is indeed achieved, it rejects the blockage because users are going to other sites”.

This decision is however unlikely to affect a ban in other countries. But it is obvious that other courts in Europe will have to take this verdict into account even if each national court has a discretional power over its own decision.

Link to the decision: http://fr.scribd.com/doc/202770084/Tpb-Appeal

Victoria LAFAY
Law student in digital economy


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