Website Blocking: Evolution or Revolution? 10 Years of Copyright Enforcement by Private Third Parties
| Autor | Ellen Marja Wesselingh |
| Cargo | The Hague University of Applied Sciences |
| Páginas | 35-47 |
IDP Issue 19 (October, 2014) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
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Published: October, 2014
Universitat Oberta de Catalunya
Abstract
Copyright enforcement by private third parties – does it work uniformly across the EU? Since the inception
of Napster, home copying of digital files has taken flight. The first providers of software or infrastructure
for the illegal exchange of files were held contributory or vicariously liable for copyright infringement. In
response, they quickly diluted the chain of liability to such an extent that neither the software producers,
nor the service providers could be held liable. Moving further down the communication chain, the rights
holders are now requiring Internet Service Providers (ISPs) that provide access to end customers to help
them with the enforcement of their rights. This article discusses case law regarding the enforcement
of copyright by Internet Access Providers throughout Europe. At first glance, copyright enforcement
has been harmonised by means of a number of directives, and article 8(3) of the Copyright Directive
(2001/29/EC) regulates that EU Member States must ensure the position of rights holders with regard
to injunctions against ISPs. Problem solved? Case law from Denmark, Ireland, Belgium, Norway, England,
The Netherlands, Austria and the Court of Justice of the EU was studied. In addition, the legal practice
in Germany was examined. The period of time covered by case law is from 2003 to 2013; the case law
gives insight into the differences that still exist after implementation of the directive.
Keywords
copyright, enforcement, case law, EU, intermediary service providers
Topic
copyright enforcement
ARTICLE
Website Blocking: Evolution
or Revolution?
10 Years of Copyright Enforcement
by Private Third Parties*
Ellen Marja Wesselingh
The Hague University of Applied Sciences
Ellen Marja Wesselingh
35
* This article constitutes the communication presented by the author at the International Conference on Internet Law
and Politics 2014, and as such was included in the Proceedings of the Conference, which are available at
handle.net/10609/36801>.
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Website Blocking: Evolution or Revolution?
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El bloqueo de sitios web: ¿evolución o revolución?
Diez años de aplicación de las leyes de derechos de autor
entre particulares
Resumen
¿Funciona del mismo modo en toda la UE la observancia de la legislación sobre derechos de autor entre
particulares? Desde la creación de Napster, la copia doméstica de archivos digitales ha emprendido el
vuelo. Los primeros proveedores de software o de infraestructuras para el intercambio ilegal de archivos
fueron considerados responsables subsidiarios o contributivos de una infracción de derechos de autor.
Como respuesta, diluyeron rápidamente la cadena de responsabilidades hasta el punto de que ni los
productores de software ni los proveedores de servicios pudieron ser considerados responsables. Bajando
de nivel en la cadena de comunicación, los titulares de derechos exigen ahora que los proveedores
de internet les faciliten el acceso a los usuarios finales para ayudarles a hacer cumplir sus derechos.
Este artículo aborda la jurisprudencia relativa a la aplicación de los derechos de autor por parte de
los proveedores de internet de toda Europa. A primera vista, la aplicación de los derechos de autor ha
sido armonizada por medio de una serie de directivas, y el artículo 8(3) de la Directiva de derechos
de autor (2001/29/EC) establece que los estados miembros de la UE tienen que garantizar la posición
de los titulares de derechos en relación con los requerimientos judiciales contra los proveedores de
internet. ¿Problema resuelto? Este artículo analiza la jurisprudencia de Dinamarca, Irlanda, Bélgica,
Noruega, Inglaterra, Países Bajos, Austria y el Tribunal de Justicia de la UE. Además, examina las
prácticas legales vigentes en Alemania. El periodo de tiempo cubierto por la jurisprudencia va de 2003
a 2013; la jurisprudencia ayuda a entender mejor las diferencias que todavía subsisten después de la
implantación de la directiva.
Palabras clave
derechos de autor, copyright, aplicación, jurisprudencia, UE, proveedores de internet
Tema
aplicación de las leyes de derechos de autor
1. Introduction
In the past twenty years, the media landscape has changed
drastically. The dissemination of creative works of any kind
used to be controlled by professional parties. Consumers
were consuming media, the reuse of existing media -for
example playing songs in a theatre- was regulated with
licenses and neighbouring rights. This has changed.
Transaction and distribution costs have gone down due
to the availability of digital media, making it possible
for consumers to become producers and distributors of
materials. These new opportunities for sharing have both
good and bad effects. A positive effect can be found in
some scientific communities where Open Access is slowly
becoming the norm. A negative effect can be found in the
peer-to-peer (P2P) file sharing facilitated by entities like The
Pirate Bay. This new norm of sharing has created friction
with the old system of copyright protection.
In the beginning of the twenty-first century, P2P file sharing
was enabled in a more or less centralised way; most well-
known is probably the Napster case (A&M Records v Napster,
2001). The company Napster was consequently held legally
responsible for copyright infringement: by allowing users to
infringe copyright directly, Napster committed contributory
(§48-49) and vicarious copyright infringement (§60).
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1. Many cases followed: Grokster/Kazaa, E-donkey, Limewire, FTD, Mininova, Newzbin and Kino to name just a few.
Essential elements were that Napster provided the software
for the user, maintained on its own servers search index
software that enabled the connection and provided a hotlist
of users of interest also currently logged on to the Napster
server (§10-11). The court did not rule the mere existence
of the Napster system as a ground for contributory and
vicarious liability (§84-85).
The Napster case inspired other software developers to
build different systems, with less centralised indexes. This
decentralisation eventually led to the model used by The
Pirate Bay. This website started in 2003 and has grown
to one of the largest file sharing facilitators (website The
Pirate Bay, 2014). The website started as a BitTorrent
tracker; a list of so-called torrents that identify which
file can be found where (Pouwelse, Garbacki, Epema &
Sips 2005). The torrent files do not contain copyrighted
materials themselves; they provide access information on
where the material files can be found on the network. Rights
holders successfully sued The Pirate Bay for (complicity in)
copyright infringement in the EU Member States Sweden
and The Netherlands (Sony Music Entertainment et al.
v Neij et al., 2009, B 13301-06) (Brein v The Pirate Bay,
2009, 428212 - KG ZA 09-1092). As a result, The Pirate Bay
switched to the provision of Magnet Links, files that do not
point to an address on the network but to a cryptographic
hash value that indicates the content of the file. This so-
called Distributed Hash Table (DHT) technology was built
to circumvent legal action by rights holders (Wolchok &
Halderman, 2010, chapter 2).
By switching to this new technique, the operators of the
P2P file sharing website no longer have any knowledge of
the exact content of the files that the cryptographic hash
value refers to, where companies like Napster and Grokster
did have actual knowledge. Because the Internet has been
mostly borderless in the past years, it has been very difficult
for the nationally organised legal systems to enforce the
shutdown of websites facilitating P2P file sharing. When
being targeted with legal action, the operators simply move
their business to another jurisdiction and the whole process
of shutting down the business by court order starts from
scratch in the new jurisdiction. As a result, the rights holders
have moved down the chain of communication, away from
the service suppliers of a specific P2P file sharing service
towards the supplier serving the end customer Internet
access. When we look at a model of communication, this
process can be depicted as shown in figure 1.
The next sections discuss that process. This article uses
the terminology Internet Service Provider (ISP), which
encompasses all types of services, including providing end
customers with Internet access, in which case the ISP will
be named Internet Access Provider.
2. Harmonisation of Copyright
Enforcement in the EU
The original maxim was to enforce copyright (and related
rights) at the source. Rights holders would sue the service
provider (operator of the website containing the infringing
materials or linking to infringing materials), such as in the
Napster case.
1
Even Grokster, which had decentralised the
business to avoid liability, was still held liable because it
actively promoted copyright infringement by use of its
service (Ricketson & Ginsburg, 2006). As discussed above,
this model no longer works due to the ease with which service
providers can move their business to another jurisdiction.
The rights holders that wanted to enforce their copyrights
had a few other options: either suing the end user, or forcing
the end users’ (mere conduit) internet access providers
to block the infringing website. The latter is what most
copyrights owners’ representatives throughout the EU do.
At a first glance, in the European Union the enforcement of
copyright has been harmonised in the Information Society
Directive (2000/31/EC), the Copyright Directive (2001/29/
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EC) and the Copyright Enforcement Directive (2004/48/
EC). The European Union strives towards a single market
and encourages the establishment of a level playing field in
the telecommunications sector because that would form the
foundation of said single market. The single market offers
opportunities to legal business as well as illegal business,
and the EU would like to encourage legal business while at
the same time fight the infringement of rights of those doing
legal business. Preamble section 59 and article 8 of the
Copyright Directive are a reflection of the recognition that
the services of intermediaries may be used for infringing
rights of others in the digital world.
Section 59 of the preamble of Copyright Directive 2001/29/
EC states: “In the digital environment [..] services of
intermediaries may increasingly be used by third parties
for infringing activities. In many cases such intermediaries
[Internet Access Providers] are best placed to bring such
infringing activities to an end. [..] rightholders should have
the possibility of applying for an injunction against an
intermediary who carries a third party’s infringement of a
protected work or other subject-matter in a network. [..]
The conditions and modalities relating to such injunctions
should be left to the national law of the Member States.”
and article 8 states: “[..] 3. 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.” There is
some harmonisation, but the exact implementation of the
instrument of injunction is left to the Member States.
3. Blocking of Copyright Infringing
Web Sites by Third Parties
In Spain, rights holders have tried to bring to court individual
end customers in an effort to stop copyright infringement.
Rights holders’ representative Promusicae sued ISP
Telefónica for the personal details of customers behind IP
addresses that were found to engage in P2P file sharing,
in 2005. In January 2008 the European Court of Justice
found that the directives regarding copyright do not require
Member States to oblige the communication of personal
data in civil proceedings, but that the Member States may
implement such measures in accordance with Community
law, such as the principle of proportionality (Promusicae
v Telefónica). Similar proceedings happened in Ireland in
2005 ([2005] IEHC 233). However, turning to individual
end customers has not become mainstream practice in
Europe, the rights holders have mostly turned to ISPs to
block the content rather than bringing individual citizens
to court. In this section case law from various European
countries regarding the blocking of P2P facilitating websites
is discussed in a more or less chronological order.
3.1. Denmark: the early years
The first cases in Denmark were directed at Internet Access
Providers to identify FTP (File Transfer Protocol) service
providers serving copyright infringing materials from their
servers. In several court cases from 2003 to 2006 (TDC
Totalløsninger v IFPI), the Internet Access Providers were
ordered to provide the contact details of the FTP operators.
From 2006 onward, P2P file sharing service providers were
targeted by rights holders. Because these service providers
operated abroad, the Danish Internet Access Providers were
ordered to block the websites. The case of the rights holders
(represented by IFPI Denmark) against Tele 2 A/S was decided
in the first instance on 25 October 2006 (Aller International
v Tele2). The court ordered Tele2 to block the website www.
allofmp3.com, followed by a second decision in which Tele2
was ordered to block www.mp3sparks.com on 15 August 2007.
The case IFPI Denmark v DMT2 A/S was decided in the
first instance on February 5th 2008 (Bailiff’s Court of
Frederiksberg). The court ordered the blocking of the website
www.thepiratebay.org and its subpages and subdomains,
without further specification of the technical measures to be
implemented by the Internet Access Provider to comply with
the order. The blocking order was appealed by the provider
(High Court, 26 November 2008) and finally decided on
May 27, 2010 by the Supreme Court (UfR 2010:2221-2230).
In the first instance, no specific technical measures were
considered; the court sufficed with a general order for the
Internet Access Provider to take the necessary measures
to prevent access. On appeal, four specific measures were
considered: hardware or software content filtering (Deep
Packet Inspection or DPI),
2
installing a proxy,
3
blocking
2. UfR 2010:2224. “Metode 1: Installation af hardware og software mellem ISP’ens internetforbindelse og deres kunders adgang.” The specific
technology mentioned is Content Filtering by Sonicwall.
3. UfR 2010:2224. “Metode 2: Etablering af en såkald Proxy.”
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DNS traffic,
4
and blocking IP addresses.
5
The same court
already considered these four measures in an appeal case
of 2 August 2006.
6
Of these four options, the Supreme Court only considered
DNS blocking a viable option. DPI is considered to be too
expensive for Internet Access Providers, both economically
and in data traffic delay. The proxy solution is troublesome
with encrypted (HTTPS) traffic, which is frequently used
in Virtual Private Networks (VPNs). IP addresses often
change frequently and may host more websites than
just the infringing site, and apart from these issues IP
addresses were considered to be personal data in the earlier
judgements regarding FTP server operators. The drawback
of DNS blocking, that it can be easily circumvented, is not
considered to be a problem; the courts are of the opinion
that “Blocking at the DNS-level are generally sufficiently
effective” (Sonofon v IFPI Danmark). The Internet Access
Providers claimed “the prohibition and injunction is
not sufficiently clear and precise, not proportional and
subsidiary”
7
but the Supreme Court disagreed and upheld
the order to block The Pirate Bay website with the use of
DNS blocking.
8
Preventing access to websites by Internet Access Providers
using DNS blocking is considered a solution in Denmark.
In January 2013, six websites were blocked by all Internet
Access Providers in Denmark for enabling the illegal
exchange of copyrighted materials. The list is growing; in
October 2013 a total of 10 websites were listed.
9
2.2. Belgium: the first references to the CJEU
In Belgium, blocking of websites by Internet Access
Providers was also the subject of discussion in court cases.
The Belgian court of first instance discussed in detail what
type of technology the Internet Access Provider may use to
implement the blocking order: a network appliance using
Deep Packet Inspection (Hughes, Mady & Bourrouilhou
2007). However, the blocking order by the court was of
a more general nature, stating that the Internet Access
Provider shall stop copyright infringements by disabling
file sharing through P2P, without giving technical
specifications.
The Belgian appeal court found reasons to ask prejudicial
questions regarding the issuance of a blanket order upon an
Internet Access Provider to install a filtering system for all its
customers to the Court of Justice of the EU in Luxembourg
(Scarlet v Sabam). In answering the prejudicial questions,
the Court of Justice of the EU found that no Deep Packet
Inspection shall be ordered in this type of case. The Court
defined the steps that a DPI system performs (Scarlet v
Sabam, 24 November 2011):
1. To identify within all of the electronic communications
the peer-to-peer traffic;
2. Identify with the peer-to-peer traffic files containing works
that may be subject to a copyright claim;
3. Determine which files are actually being shared unlawfully;
4. Preventing the availability of these files that contain
works subject to a copyright claim.
The Sabam v Netlog case (16 February 2012) concerned
a social network instead of an Internet Access Provider.
However, the Court concluded similarly: no service provider
can be required to implement a general monitoring
obligation that is unlimited in time, monitors all users
without prejudice for an unlimited period of time and must
be funded exclusively at the cost of the service provider.
This is in line with previous case law concerning a service
provider enabling the online trade of physical goods (L’Oréal
v Ebay). In this case service providers may be required to
block activities involving trademark infringement (including
future infringements), but there can be no general monitoring
obligation. According to the Court, the prohibition of a
general filtering obligation under preamble sub 47 and
article 15(1) of the Information Society Directive (2000/31/
4. UfR 2010:2225.
5. UfR 2010:2225.
6. UfR 2010:2229.
7. UfR 2010:2229.
8. UfR 2010:2230.
9. Tele Industrien provides a list (www.teleindu.dk/brancheholdninger/blokeringer-pa-nettet/>); in January 2013 the following websites
were listed: fmp3.com (2006/7>), .mp3sparks.com (2006/7>), .thepiratebay.org (2008)>, ebay.se (2012)>,
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EC) is applicable to Internet Access Providers (Scarlet v
Sabam) as well as Social Networks as hosting providers
(Sabam v Netlog).
In both the Scarlet v Sabam and Sabam v Netlog cases
the Court considered the human rights as defined in the
Charter of Fundamental Rights of the EU, most notably
the freedom to do business (Scarlet §46, Netlog §44),
privacy of individual customers (Scarlet §51, Netlog §48-
49) and freedom of expression (Scarlet §52, Netlog §50).
The material questions on whether one right or the other
must prevail in a specific case must be left to the national
court, especially since statutory exceptions to copyright
exist among EU Member States (Scarlet §52, Netlog §50).
2.3. The United Kingdom: a shift in technologies
prescribed
In the UK, a number of cases went all the way to the High
Court. After unsuccessfully ordering the website Newzbin
to close down in 2010, the court ordered Internet Access
Provider British Telecom (BT) to block the website Newzbin2
in July 2011 (Fox v BT, [2011] EWHC 1981). In April 2012,
providers Sky, BT, Everything Everywhere, TalkTalk, Virgin
Media and Telefónica were ordered to block The Pirate Bay
(Dramatico v B Sky B, [2012] EWHC 268). In February 2013,
the same providers were ordered to block the websites KAT
(Kickass Torrents), H33T and Fenopy (EMI v B Sky B, [2013]
EWHC 379). Without being exhaustive, the list shows that
blocking is a popular method.
Based on section 97A CDPA 1988, which implements article
8(3) of the Copyright Directive,
10
the rights holders wanted
that “The Defendant [access provider British Telecom] shall
prevent its services being used by users and operators of
the website known as NEWZBIN and NEWZBIN2 to infringe
copyright.”
11
Regarding the technology to be implemented,
the revised request was that “The Respondent [British
Telecom] shall adopt the following technology directed to the
website known as Newzbin or Newzbin2 currently accessible
at www.newzbin.com and its domains and sub domains. The
technology to be adopted is:
(i) IP address blocking in respect of each and every IP address
from which the said website operates or is available [..].
(ii) DPI based blocking utilizing at least summary analysis
in respect of each and every URL available at the said
website and its domains and sub domains [..].”
12
We see that the High Court orders Deep Packet Inspection,
and specifies in detail that all web addresses (Uniform
Resource Locators or URLs) of all websites that are being
visited by all the BT customers must be checked, in order
to find the main domains and the subdomains operated
by Newzbin, and subsequently filter out these domains.
The final order given reiterated what type of technology
the Internet Access Provider shall use to implement the
blocking order.
13
The reasoning in the Newzbin case shows
that the Court did consider the issues of and freedom of
expression (§76-77, 164) and the right to property (§78).
Privacy was not explicitly considered, reference was made
to the Privacy directive 95/46/EC (§79 and 88) and to case
law of the European Court of Justice (§155). The issue of
freedom of doing business was not considered by the Court
in its weighing of rights.
Nearly a month after the Newzbin case, the Court of Justice
of the EU delivered its interpretation of the EU law in the
Scarlet v Sabam case on 24 November 2011. This judgement
clearly prohibited courts under EU law to order blocking of
websites with the use of DPI techniques. From then on, the
High Court issued blocking orders by application of different
techniques:
“[..] The technology to be adopted is:
(i) IP blocking in respect of each and every IP address from
which the said website operates and which is:
(a) notified in writing to the Respondent by the Applicants
or their agents; and
(b) in respect of which the Applicants or their agents
notify the Respondent that the server with the
notified IP address blocking does not also host a site
that is not part of the Newzbin2 website.
(ii) IP address re-routing in respect of all IP addresses that
provide access to each and every URL available from
the said website and its domains and sub-domains and
10. Fox v BT §153 & §158.
11. Fox v BT §11.
12. Fox v BT §12.
13. Fox v BT Order, issued 26 October 2011.
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which URL is notified in writing to the Respondent by
the Applicants or their agents; and
(iii) URL blocking in respect of each and every URL available
from the said website and its domains and sub-domains
and which is notified in writing to the Respondent by
the Applicants or their agents.” (Dramatico v Sky, 2012).
At the time of this writing, many websites in the United
Kingdom are blocked (well-known examples are www.
newzbin.com and www.thepiratebay.org), but due to the
various methods used by ISPs it remains uncertain exactly
how many websites are blocked. However, the list contains at
least 150 named websites that are being blocked according
to an activist collection page (Immunicity, 2014).
2.4. Austria: not too specific, are generic blocking
orders the answer?
In Austria, article 8(3) of the Copyright Directive is
implemented in §81 of the federal law regarding the
copyright on works of literature and art and concerning
neighbouring rights.
14
Court judgements are phrased in two
stages: first, a blocking order is given to an Internet Access
Provider, ordering the provider to take whatever measures
are necessary to block a website without specifying in detail
when and technically how the website(s) shall be blocked
by the access provider. This issue creates legal uncertainty
(Rechtsunsicherheit) of subjects regarding the application
of the law in a certain case: an Internet Access Provider is
not really capable to judge the validity of a blocking request
by a private party, especially regarding the requirements
of systematic and regular infringement as argued in court
cases. The technical measures taken by the provider must
be tested by an independent judge upon request of rights
holders. A ban (Erfolgsverbot) and independent judgement
are not necessarily mutually exclusive in the opinion of the
Austrian government (Wesselingh, 2013).
The Austrian High Court asked prejudicial questions about
the procedure to the European Court of Justice (UPC
Telekabel Wien, 2012, C-314/12). The questions referred
to by the Austrian High Court ask whether the website
illegally providing copyright protected material is using
Internet Access Provider services when customers of
that access provider download copyrighted content, and
if downloading for private use from an illegal source is
permitted if providers of illegal material are not using the
services of the access providers mentioned in the first
question. The third prejudicial question asked whether a
blocking order without specific technical implementation
is considered compatible with EU Law; the final question
concerned whether the cost of implementation would be a
prohibiting factor for a blocking order.
In November 2013, the Advocate General issued his opinion
on these questions, the judgement of the Court followed
on 27 March 2014. A website illegally providing copyright
protected material is using the services of an Internet Access
Provider whose customers access that copyright protected
material (Advocate General §59, Court §40). According
to the Advocate General, a so-called Erfolgsverbot (a
generically formulated blocking order for a specific website)
that is being ordered upon a third party that does not have
a contractual relationship with the infringer, is contrary
to the requirements as set in article 8(3) of Copyright
Directive 2001/29 (§71), not providing a fair balance between
enforcement of copyright and freedom of expression (§82)
and freedom of enterprise (§83). The Court did not find
that EU law precludes this Erfolgsverbot, provided it does
not hinder lawful information access and the measure is
effective in preventing unlawful access (§64).
There are some potential issues with a generically formulated
order without specification of the technical measures to be
implemented by a third party to stop copyright infringement,
notably the legal insecurity. However, given the fact that
case law of the CJEU shows unequivocally that very specific
and targeted solutions such as Deep Packet Inspection are
not allowed, and there is a right to freedom of enterprise,
a more generic blocking order which allows the third party
to make choices of implementation seems an appropriate
solution.
2.5. Norway and The Netherlands: no, yes, err... no
(or maybe yes)
In most countries discussed before, the reasoning and exact
implementation of the solution to copyright infringement
via P2P networks is not similar in detail, but the outcome
at the highest level of abstraction is similar: a website
shall be blocked by the Internet Access Provider. In some
countries the order is accompanied by detailed technical
14. Bundesgesetz über das Urheberrecht an Werken der Literatur und Kunst und über verwandte Schutzrechte.
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implementation requirements whereas in other countries
the implementation is left to the access provider. However,
there are even some exceptions to the blocking orders
issued.
In 2010, the Norwegian Court of Appeals refused an interim
measure in the application for a preliminary injunction by
various rights holders. The rights holders had sought an order
requiring an Internet Access Provider to cease contributing
to infringements committed through the P2P exchange site
The Pirate Bay. The Court of Appeals confirmed the rejection
by the Court of first instance and refused the requested
measure, since article 8(3) of the Copyright Directive was
not specifically implemented in Norwegian law (Nordic
Records v Telenor, 2010).
15
The Court noted that despite the
fact that the dispute had been going on for several years,
the rights holders had not started substantive proceedings
to order Telenor to block The Pirate Bay (p. 22), indicating
that the Appeals Court did not find an urgent reason for
an interim measure.
In one Dutch case in summary proceedings, the court
dismissed a blocking order sought in 2010 (Brein v UPC,
2010). The request for a blocking order was rejected based
on proportionality (a minority of customers is infringing but
the order concerns all customers), no concrete individualised
infringement, not clear why it would not be possible to
call to justice one or more individuals, and no individual
users could be heard in court. Subsequent substantive
proceedings before the court in The Hague in first instance,
led to blocking orders imposed on all major Internet Access
providers in 2012 (Brein v Ziggo, 2012) (Brein v UPC, 2012).
In appeal, the Court of Appeals in The Hague ruled in January
2014. The providers Ziggo and Xs4all had appealed the
order imposed on them to block the websites of The Pirate
Bay (TPB) in January 2012. The Court of Appeals reversed
the order given by the Court of First Instance, reasoning
that blocking is not effective when the total behaviour of
Ziggo customers is taken into account (§5.12). The court
introduced a new concept of effectiveness that includes use
of other entry points to access illegally offered copyrighted
materials, such as the availability of proxy services to go to
TPB and also the use of different providers of copyrighted
materials (§5.13). From the viewpoint of the administrators
of TPB, they are less effective in their infringements due to
the blockade (§5.12), but from a more general viewpoint the
blockade is not effective. The court is not convinced about
the argument that TPB is a test case, since it would have
been quite easy for the complaining party (Brein) to add
other big torrent providing sites to the affidavit (kickass.
to, torrentz.eu, Isohunt), as these parties do not have to be
involved in the proceedings (TPB was not involved in this
case either).
Dutch rights holders’ representatives have announced that
they will go to the High Court in a bid for cassation of the
judgement to repeal the blocking order. Up until now, they
seem wary to start civil procedures against large-scale
infringing individuals, or stop their efforts to bring large-
scale file sharing to a halt.
3. Discussion and Conclusions
Where is all this fighting taking us? The EU has issued
three directives that aim to provide effective protection of
copyright, but the de facto situation is that many providers
of platforms where copyrighted material can be illegally
exchanged are situated outside of EU borders. This means
these providers cannot be legally challenged in the EU, as the
EU has no jurisdiction. In order to get an effective remedy,
the rights holders turned to intermediary service providers,
the Internet Access Providers whose customers access
the material through the platform located outside the EU.
The Internet Access Providers mostly refuse to cooperate,
leading to many court cases in which the rights holders seek
orders to block specific websites. In many cases, the court
actually grants a blocking order. However, there is a great
deal of variety in the way providers have to comply with the
order. In Austria, it is thought that the provider is best suited
to consider and implement a specific measure. The order is
only generically formulated, a practice that introduces legal
uncertainty according to these providers (and the Advocate
General at the CJEU). In the United Kingdom, providers have
been ordered in great detail how to implement the blocking
order. Other EU countries have seen blocking orders with a
level of detail in between these two extremes.
Occasionally, no blocking order was granted. In the latest
case in The Netherlands, the Appeal Court reversed a
15. Although Norway is not a party in the EU treaties, in practice it does follow EU law.
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previously ordered blockade. The representative of the
rights holders (Foundation Brein) has announced it will
appeal that decision. Meanwhile, the discussion of whether
blocking websites by Internet Access Providers is effective
or not continues. Both sides in the dispute have come up
with research showing that their position is correct, while
these positions are mutually exclusive: either a blockade is
effective or it is not. One further step into the analysis of
positions was done by the Dutch Court of Appeal, in that
it separated the effectiveness from the viewpoint of the
website and the viewpoint of the end user. Whether that
provides the answer to the apparent contradiction remains
to be seen.
At the moment, EU Member States have a margin of
appreciation when implementing the EU Directives 2000/31/
EC, 2001/29/EC and 2004/48/EC. The margin leads to
differences in case law observed throughout the EU. In
light of the ambition that the telecommunications market
should be a single market throughout Europe, this seems
an anomaly.
Until now, the rights holders’ representatives in some
EU Member States have shied away from going after the
individual. With the rights holders having few other options
left, they may in the future choose to start civil procedures
against large-scale uploaders. In Germany, a legal practice
has emerged in which certain legal firms target thousands
of individuals each year. People downloading movies or
watching streaming video received letters claiming copyright
infringement and a transaction proposal involving hundreds
of Euros and the signing of a contract to not do it again, ever.
Breach of that contract may cost thousands of Euros. The
German government recently adopted a law to maximise
the penalty sought, to mitigate the problem (Dedden, 2013).
The judgements of the CJEU are problematic from a
copyright enforcement perspective as DPI is the only
method currently available to distinguish legal P2P traffic
from copyright infringing P2P traffic. Legal use of P2P
traffic examples include synchronisation of servers (as
Facebook does on its back-office network) and the sharing
of Open Source software (such as Linux operating system
distributions). Also, the various exceptions in the copyright
laws provide for legal transmission of (parts of) copyrighted
materials.
The current methods that are imposed by the courts are
IP address blocking and DNS blocking. Both are rather
crude instruments, indiscriminately blocking legal content
and copyright infringing content based on the source.
DNS blocking of websites does not function as a very high
threshold since there are sufficient methods available
to bypass the blockade (Dilmpieri, King & Dennis, 2011)
(Wesselingh, Cristina & Tweeboom, 2013) (Poort, Leenheer,
van der Ham & Dumitruc, 2013). IP address blocking appears
to do the job, but may only be imposed in cases where
an infringing website is the only website behind an IP
address. No case law on this subject matter is available
today, although the Yildirim case that was argued before
the European Court of Human Rights provides some insight
into what direction such case law might go (Yildirim v Turkey,
2012).
Case law is rapidly emerging at the highest level, with several
cases before the Court of Justice. So far, the court has
interpreted EU Law as prohibiting invasive techniques like
Deep Packet Inspection for copyright enforcement. Recently
the Court decided that EU Law does not prohibit any blanket
type of injunction on third party service providers, with the
provisions that lawful information must remain accessible
and the measures taken must be reasonably effective. These
developments will probably lead to the techniques of DNS
blocking and IP address blocking being the only tools that
may be applied in the future, tools of which the effectiveness
is under discussion.
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Recommended citation
WESSELINGH, Ellan Marja (2014). “Website Blocking: Evolution or Revolution? 10 Years of Copyright
Enforcement by Private Third Parties”. IDP. Revista de Internet, Derecho y Política. No. 19, pp. 35-47.
UOC. [Accessed: dd/mm/yy].
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nd/3.0/es/deed.en.
About the author
Ellen Marja Wesselingh
e.m.wesselingh@hhs.nl
The Hague University of Applied Sciences
After graduating in 1995, the author worked in various technical positions in the ICT industry. Since
2004, she has been a lecturer at The Hague University of Applied Science. While she began teaching
mainly on networking technologies, in the last five years she has taught mostly subjects in ICT law.
Since February 2012, she has been working on a PhD project on the enforcement of copyright on the
Internet, focusing on the interaction between technology and law. This paper is part of the research
she is doing for this PhD project.
The Hague University of Applied Sciences
Rotterdamseweg 137
2628 AL Delft
