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BREIN considers appealing to Supreme Court against dismissal of blocking The Pirate Bay

Gepubliceerd op 28/01/2014 om 16:56 | Link

The appeal court of The Hague today rejected the blocking of The Pirate Bay because it deemed it not effective. The district court had granted the injunction to BREIN and ordered that access providers Ziggo and XS4ALL had to block their subscribers' access to the illegal website.

BREIN notes that the appeal court's verdict is opposed to the judgement of courts in other European countries and is preceding the verdict of the Court of Justice of the European Union that is expected shortly. In that case (UPC Wien) Europe's highest judge will rule on the same subject matter. The Advocate General in his conclusion of last November appears to give a more limited explanation to the concept of "effectiveness" than the court of appeal of The Hague.

Remarkable is that the appeal court deems the blocking not effective while it does concede that both the visits to The Pirate Bay have decreased as well as the number of infringing subscribers. However, the court deems that the purpose of blocking is to decrease the total number of infringements. Because the overall bittorrent traffic at XS4ALL did not decrease, the court assumes that its subscribers circumvent the blocking or visit other torrent sites. The court considers that BREIN should have requested the blocking of other illegal websites at the same time. BREIN does not agree with this reasoning of the court.

Nevertheless the court ruled in favor of BREIN on most issues. Amongst others that a significant share of Ziggo and XS4ALL subscribers infringe via The Pirate Bay, that The Pirate Bay not only acts unlawfully (by giving access through torrents) but also infringes by offering artwork on its site, and that the services of Ziggo and XS4ALL are being used to infringe. Furthermore the court rules that the blocking is not costing the providers much, is very simple and does not cause them much (administrative) trouble.

"The verdict of the court is negative for the development of the legal online market because it needs protection against illegal competition", says BREIN director Tim Kuik. "The purpose of the blocking of The Pirate Bay of course is to decrease the infringements via The Pirate Bay. It is contradictory that the court finds that this goal indeed is achieved but then still rejects the blocking because users can go to other sites".

BREIN considers filing appeal to the Supreme Court against the verdict and eagerly awaits the soon to be expected decision of the Court of Justice in Luxembourg. That court is looking at whether, and if so, to what extent, effectiveness plays a role in the question whether an access provider should block an unlawful website.

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