The ruling comes after seven-year legal battle and could lead to ISPs and governments blocking access to other torrent sites across Europe

The European court of justice (ECJ) has ruled that BitTorrent site The Pirate Bay is directly infringing copyright, in a move that could lead to ISPs and governments blocking access to other torrent sites across Europe.



The ruling comes after a seven-year legal battle, which has seen the site, founded in Sweden in 2003, blocked and seized, its offices raided, and its three founders fined and jailed.

At the heart of the case is the Pirate Bay’s argument that, unlike the previous generation piracy sites like Napster, it doesn’t host infringing files, nor link to them. Instead, it hosts “trackers”, files which tell users of individual BitTorrent apps which other BitTorrent users to link to in order to download large files – in the Pirate Bay’s case, usually, but not exclusively, copyrighted material.

Additionally, the site argued that because it didn’t create the trackers itself, but merely hosted those uploaded by its users, it should be protected under “safe harbour” provisions – the same rules that mean that YouTube is not immediately liable for copyrighted material uploaded to its site.

But the ECJ disputed those claims, arguing that the Pirate Bay goes further than a protected site should, by offering not just a search feature, but also categorising files, deleting faulty trackers, and filtering out some types of content. That means, in the court’s eyes: “The operators of the platform play an essential role in making those works available.”

The Pirate Bay’s own statements on the matter were also held against it, the court said: “The same operators expressly display, on blogs and forums accessible on that platform, their intention of making protected works available to users, and encourage the latter to make copies of those works.”

The case was brought by a Dutch copyright holder’s group that seeks to force two of the country’s ISPs to block the Pirate Bay. The Dutch Supreme Court referred it to the ECJ for clarification on one specific point: whether or not the Pirate Bay was making a “communication to the public” with full knowledge of the fact that it was providing access to protected works.

The ECJ’s finding that it was communicating with full knowledge now opens the way for other rightsholder’s organisations across Europe to demand the Pirate Bay be blocked, and potentially other BitTorrent tracker sites as well.

In 2012 the UK High Court ordered five of the biggest ISPs, including Sky, Virgin and EE, to block the site. Then, Mr Justice Arnold said in a written judgment: “In my judgment, the operators of [The Pirate Bay] do authorise its users’ infringing acts of copying and communication to the public. They go far beyond merely enabling or assisting.”