A block on the website The Pirate Bay has been partially lifted by the Court of Appeal in The Hague, according to ZDNet. The Court of Appeal came to this result, reasoning that the block was disproportionate for two particular Internet Service Providers and also because it generally was not effective.
The Pirate Bay, as a search engine, can locate tiny information files known as torrents that implement content downloading on the BitTorrent peer-to-peer file-sharing system. This can enable the sharing of pirated music, movies, and software.
Previously, as far back as January 2012, The Hague District Court had commanded two ISPs -- XS4ALL and Ziggo -- to block The Pirate Bay. As it turns out, however, the blocking at these two ISPs largely has been circumvented by subscribers, as recognized by the Court of Appeal.
Indeed, as noted by the Court of Appeal, rather than accessing The Pirate Bay directly, subscribers have been using proxy servers or are diverted to alternative torrent sites. And a report by the Institute of Information Law at the University of Amsterdam found that downloading from illegal sources actually increased subsequent to the block having been put in place. Accordingly, the block constitutes a violation of these ISPs' fundamental right of freedom of entrepreneurship, as ruled by the Court of Appeal.
The two ISPs in this instance had been sued by Brein, a Dutch anti-piracy foundation that represents Dutch copyright holders. While the block has been lifted by the Court of Appeal as to XS4ALL and Ziggo, blocks still remain in place as far as Tele 2 KPN, and UPC. Their cases are scheduled to be addressed in March.
It is not clear yet whether Brein will try to argue a misapplication of the law by the Court of Appeal to the governing Supreme Court. Brein cannot argue against the facts that already have been established; this could be a problem if Brein seeks review by the Supreme Court, because the facts indicate that the block that had been in place was not effective.
Plainly, copyright law exists for a reason, and copyright holders' rights properly should be protected. In this scenario, the Court of Appeal in The Hague determined that the block put in place with respect to two specific ISPs was not warranted. This does not rule out the facts of another case convincing a court to go the other way.
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