The Pirate Bay is blocked by court order in several European countries on copyright infringement grounds. In the Netherlands today, local ISPs are arguing that not only is DNS and IP address blocking both disproportionate and ineffective, but denies subscribers free access to information and runs counter to an EU ruling against filtering the Internet. Needless to say, anti-piracy group BREIN sees things rather differently.

In 2010, Dutch anti-piracy group BREIN went to court to try and force Ziggo, the Netherlands’ largest ISP, to implement a DNS and IP address block of The Pirate Bay.

Ziggo were later joined in the case by rival ISP XS4ALL, fighting the action together in the hope of avoiding a damaging precedent. Initially the court decided that blocking all subscribers went too far but BREIN wasn’t satisfied and took the case to a full trial.

In late 2011 the case was heard, with the ISPs arguing in favor of their customers’ right to have free access to information and BREIN countering that copyrights need protecting too.

In January 2012 the ISPs lost the case and BREIN celebrated victory.

Both Ziggo and XS4ALL subsequently filed appeals but in May 2012 yet more local ISPs – KPN/Telfort, UPC,T-Mobile and Tele2 – were ordered to block The Pirate Bay on the back of the original ruling.

Ziggo and XS4ALL appeal

Today the Ziggo / XS4ALL appeal is being heard in the Court of The Hague. Andreas Udo de Haes, editor of Dutch news site Webwereld, has been live tweeting from the courtroom and there are some interesting arguments to report.

The legal team for XS4ALL began with a reference to the failed SOPA/PIPA legislation in the United States which would have allowed DNS and IP blocking of ‘pirate sites’. Over in Europe, the EU Enforcement Directive is clear on ISP liability for third-party infringements and proactive blocking of communications is prohibited according to recent case-law (1)(2), the ISP’s lawyer argued.

XS4ALL went on to insist that blocking the full Pirate Bay site is a disproportionate response – even if 90% of the indexed content is illegal, many hundreds of thousands of legitimate files are now affected by the blockade.

In any event, the ISP believes that website blocking is ineffective in stamping out copyright infringement. Research carried out by ISPs and researchers has found that blocking The Pirate Bay is futile. If the tool is useless, then there can’t possibly be a need for it, the ISP told the court.

A combination of improved legal options and educational measures are a better bet, XS4ALL concluded.

Ziggo: File-sharing is an advertising channel

Next up was the lawyer for Ziggo, who began by pointing out that not only is the blockade of The Pirate Bay easily circumvented using proxy sites, but there are also plenty of alternative sites offering similar content.

Ziggo said that file-sharing had not caused the end of the music industry and that offering decent legal alternatives leads to a decline in piracy. The existence of iTunes shows that it is entirely possible to compete with ‘free’, the ISP said.

Ziggo’s lawyer said that while BREIN insists that the growth of file-sharing has damaging effects on culture, creativity and the entertainment industry, research shows that the sector is actually growing. The ISP said if there is indeed a relationship between piracy and legal services, it is a positive one, with piracy operating as an advertising channel.

Ziggo went on to underline that it has absolutely no connection to The Pirate Bay and operates only as an intermediary, yet it is expected to implement a very broad filter which indiscriminately blocks users regardless of the kind of content they’re trying to access.

The ISP added that the EU court previously held that preventive measures are only allowed if the fundamental rights at stake in the case are carefully weighed. The current blockade is the start of a very dangerous path, Ziggo concluded.

BREIN: Pirate Bay is run by teenagers profiting from ads of naked girls

After a short break, BREIN presented their case. The anti-piracy group said that despite the ISPs proclaiming the end of the Internet if they are forced to block sites like TPB, no such thing has come about. ISPs are able to block spam because their customers prefer it, but blocking a site such as The Pirate Bay is suddenly difficult only because their customers find it useful.

ISPs are in the business of selling bandwidth, BREIN’s lawyer said, but this is at the expense of poor artists and bankrupt record stores.

BREIN said that the nature of BitTorrent is clear – its users upload as well as download so are therefore infringing copyright. The Pirate Bay also infringes and represents the greatest instance of piracy “in the history of mankind” and must be stopped. Just this week it had Grand Theft Auto V in advance of its official launch.

BREIN’s lawyer said that 95% of the content indexed by The Pirate Bay is illegal and the legal content has “zero seeders and zero peers.” The site removes fakes, does not respond to takedown notices, and is run by “a pair of Swedish teenagers who turn 30 million euros in revenue with ads of naked girls.”

Countering claims that the blockade is ineffective, BREIN said that its research shows that when confronted with a block, users tend to go to other sites, an indication that the blockade is indeed working. Those other sites, BREIN said, will be targeted in due course.

Blocking is a proportional response and costs very little to implement, BREIN went on to argue, adding that according to Alexa, Google and Comscore, The Pirate Bay’s traffic dropped when the blockades were introduced and fell again when its proxy sites were hit. Surprisingly, BREIN told the court it had shut down around 200 proxies.

BREIN went on to argue that the blockades had been effective in reducing piracy and stated that previous studies reporting no decrease in torrent traffic after the blockades were introduced could not be relied upon. There had been an increase in legal BitTorrent usage, BREIN said, such as server syncing carried out by Facebook, traffic which the studies did not look at.

The anti-piracy group also contested the notion that DNS blockades are a form of abuse. BREIN said the technique was more akin to a configuration change rather than an attack on the Internet. As for the EU ruling in the SABAM case, BREIN said it had concentrated on the L’Oreal v eBay judgment. It was not asking for hugely expensive packet level filtering but a straightforward block of The Pirate Bay, in same way that the ISPs block thousands of spam sites every day.

Interestingly the judge then questioned BREIN on the effectiveness of the blockades. BREIN said its goal is to have The Pirate Bay blocked, however the judge recalled that BREIN had already admitted that people circumvent that ban by going to other sites. BREIN said they would tackle those sites next but Ziggo countered by stating that many of those sites are outside the Netherlands.

And now comes the wait, possibly as long as six weeks, for what could turn out to be an extremely important ruling.