The European Court of Justice (ECJ) has just heard a long-running case involving The Pirate Bay, Dutch anti-piracy group BREIN, and a pair of local ISPs. Should the infamous torrent site be blocked at the ISP level, even though it may not be a direct infringer itself?

In 2014, The Court of The Hague handed down its decision in a long-running case which had previously forced two Dutch ISPs, Ziggo and XS4ALL, to block The Pirate Bay.

The case was filed by local anti-piracy outfit BREIN, which faced defeat when the Court ruled that the blockade against the popular torrent site restricted the ISPs’ entrepreneurial freedoms.

As a result, The Pirate Bay was unblocked in the Netherlands. However, BREIN wasn’t done and the anti-piracy group pressed on, taking the matter to the Supreme Court.

Acting on advice from the Advocate General, in November 2015 the Supreme Court postponed its final decision, referring key questions to the EU Court of Justice.

Yesterday, the hearing took place yesterday before the European Court of Justice (ECJ), which was asked to decide;

– Whether The Pirate Bay communicates infringing content to the public

– Whether the operator of a website communicates copyrighted works to the public when it indexes and links, but doesn’t host content itself. If not, the Court was asked to decide whether TPB can be blocked for facilitating infringement.

This is a big moment for BREIN, who will have been encouraged by a decision handed down by the ECJ in September. In that case, Playboy defeated Dutch blog GeenStijl.nl, which had deliberately published links to content it knew to be infringing, but didn’t host itself.

In the Playboy case, the ECJ found that when a person knew or ought to have known that a posted hyperlink provides access to an illegally published work, the provision of that link constitutes a communication to the public.

It further found that when hyperlinks are used for profit, those displaying such links are expected to carry out checks to ensure that the relevant works have not been illegally published. If they have been published illegally, that too represents a communication to the public.

BREIN believes these parameters can be applied to the Pirate Bay case.

“We argue that rights holders have not granted permission to distribution of their works via TPB and TPB actively and knowingly maintains a collection of infringing links (over 90% is infringing) for profit. Moreover, TPB itself makes magnet links of the torrent links. So it is infringing,” BRIEN chief Tim Kuik informs TF.

“The service providers [Ziggo/XS4All] say that TPB facilitates infringement but does not infringe itself. Their arguments seemed all over the place.

“They shamelessly said TPB is neutral and passive like Google but at the same time also agreed it is unlawful, not like Google. Also, one of their arguments to reject blocking was that it is more proportionate for BREIN to go after infringing users (their own subscribers),” Kuik adds.

But while BREIN and the ISPs battle it out, the anti-piracy group has gained support from a heavyweight ally.

“The European Commission says that it stands on the side of BREIN: both civil and criminal law can be enforced against services like TPB that facilitate infringement, even by blocking access to the site by service providers,” BREIN says.

“France and Spain also took part in the hearing and argued, contrary to the opinion of the Commission but in line with BREIN, that TPB itself is infringing. They also argued that access to TPB must be blocked, which happens in those countries already.”

The Advocate General will issue his advice on January 19, 2017, and a ruling is expected to follow about three months later.