Germany's Supreme Court has ruled that an ISP can be required to block sites that infringe on copyright, even though the ISP has no relationship with them. However, this is subject to two conditions: before seeking an order that requires ISPs to block a website, the copyright holders must have explored all other avenues, for example contacting the operators of the site in question and the Web hosting company. In addition, Web blocks can only be used for sites which "on balance" have more illegal than legal content. However, the court did not provide any guidelines for how that balance would be judged.

As TorrentFreak explains, "The origin of the ruling dates back seven years when German music rights group GEMA, known for its aggressive anti-piracy stance, found music tracks on major file-hosting sites being distributed via the music linking site 3DL.am." When GEMA was unable to contact 3DL.am's operators it asked Germany's leading ISP, Deutsche Telekom, to block access to the site for all its users. Deutsche Telekom refused on the grounds that it was simply providing connectivity and had nothing to do with any alleged infringement on the site.

In the end, GEMA's case ended up before the German Supreme Court, which said that copyright holders could ask for an injunction forcing ISPs to block access to websites. It cited Article 8 of the EU Copyright Directive as justification for its decision, which states: "Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right."

However, as the German digital rights blog Netzpolitik.org points out, the judges are being rather selective here, since Article 12 of the EU Directive on Electronic Commerce clearly states: "Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted." That is, the service provider is a "mere conduit" of a "dumb pipe," and is not to be held responsible for the traffic it conveys.

TorrentFreak quotes GEMA CEO Harald Heker as saying the ruling was "an important step to combat Internet piracy." But it is easy for the operators of these sites to circumvent such injunctions, as the British experience of Web blocks, brought in four years ago, confirms. In March this year, the six main UK ISPs were blocking over 100 websites because of alleged infringing material they held, with the number constantly growing as new sites replace those that are blocked. There's also no sign that the use of Web blocks is leading to a substantial reduction in the number of people accessing unauthorised copies of music and videos. That's in contrast to mounting evidence that providing good-quality legal services at fair prices does reduce online piracy.