The European Court of Justice (ECJ) has dealt a blow to file sharing site The Pirate Bay in a ruling that upholds the rights of owners of copyright works. 

The ECJ's recent ruling in Stichting Brein v Ziggo BV and XS4ALL Internet BV confirms that the "making available and management, on the internet, of a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network" constitutes the communication of those works to the public, and is therefore primary copyright infringement.

In this case, Stichting Brein (a Netherlands foundation which safeguarded the interests of copyright holders) sought an order requiring two internet access providers (Ziggo BV and XS4ALL) to block the domain names and IP addresses of online file sharing platform The Pirate Bay (TPB), which enabled users to download BitTorrent files containing copyrighted material, such as music, movies and TV shows. Stichting Brein argued that TPB communicated copyright works to the public for the purposes of Article 3(1) of Directive 2001/29/EC of the European Parliament and Council and thus directly infringed copyright. 

Under Article 3(1), "Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, 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."

The Supreme Court of the Netherlands accepted that TPB, and subscribers to Ziggo and XS4ALL (through TPB), made protected works available to the public without the rightholders' consent and so infringed copyright. However, the Supreme Court was unable to determine the issue of whether TPB communicated copyright works to the public for the purposes of Article 3(1), and referred the matter to the ECJ for a preliminary ruling.

The ECJ held that Article 3(1) involved two elements: an 'act of communication' of a work and the communication of that work to a 'public'.

In considering the first element, the ECJ acknowledged that the copyright works made available to TPB users were uploaded to the platform by its users, not by TPB itself. However, it considered that TPB's role was not merely limited to providing the facilities for users to communicate copyright works. TPB indexed torrent files in such a way that enabled users of the platform to easily locate and download the copyright works to which the torrent files referred. Further, TPB provided a search engine for locating files, offered an index classifying the works under different categories (such as type of work, genre or popularity), ensured that works were appropriately classified and filtered out obsolete or faulty torrent files. In doing so, TPB 'communicated' those copyright works

On the issue of communication to the 'public', the ECJ considered that TPB had millions of users, all of whom were able to access the copyright works and thus were recipients of 'communication' of those works. The communication of these works to, at the very least, all TPB users, constituted communication to the public. Further, by accessing these works without authorisation, these users were likely not part of the 'public' taken into account by the copyright holders and therefore were a 'new public' for the purposes of copyright law.

The ECJ's ruling may not have significant implications for torrent sites, copyright owners and the file sharing community alike, as a number of jurisdictions already require ISPs to block torrent sites such as TPB and users of these sites may circumvent ISP blocks in any event. However, the ruling may create an impetus for New Zealand ISPs (which do not currently block access to TPB) to reconsider their approach to these websites in light of New Zealand's own laws prohibiting unauthorised communication of copyright works to the public. If so, this could be an important victory in the war on file sharing, although TPB and its cohorts will be unlikely to go down without a fight.

The ECJ's full judgment can be accessed here.