Pirate Bay appeal to the European Court of Human Rights (ECHR)
In 2009 Fredrik Neij and Peter Sunde Kolmisoppi were sentenced to one year in prison for complicity in sharing, or allowing others to share, torrent files. According to RAPSI the European Court of Human Rights has upheld the Pirate Bay co-founder's criminal conviction for aiding infringement on the Internet'. Intellectual Property Watch states:
- “Neiji and Sunde had asked the Court to declare the rulings of Swedish courts against their operation of the file-sharing service Pirate Bay a violation of Article 10 (freedom of expression) of the European Convention on Human Rights......The Strasbourg Court in its ruling today unanimously affirmed the right to share even copyrighted material, finding that even sharing for commercial purpose is covered by Article 10. Yet the Swedish Courts had balanced the two conflicting rights of freedom of expression and copyright protection in its judgement. ”
High Court blocking order
Court orders are now blocking the Pirate Bay, the second such copyright related order, after Newzbin2. Interestingly, Justice Arnold has presided over all such court cases apart from the very first hearing against Newzbin.
February: finding against the website
- 2012 EWHC 268 (Ch) on Bailii.org 20 February
The BPI had requested ISPs to block The Pirate Bay months previously, but ISPs were reluctant to block the site unless formally mandated by a court order. The BPI went to court, and brought the injunction against the ISPs, rather than The Pirate Bay, which meant that the ISPs were the defendants (who didn’t show up and had no representation) and The Pirate Bay was an uninvolved third party throughout the proceedings. Much of the court case consisted of Justice Arnold considering whether The Pirate Bay was infringing copyright. Because The Pirate Bay were not involved in the case, the judge had to consider whether the claimants had to join The Pirate Bay as a defendant (and found that they didn’t), and then had to consider the possible liability of users and operators of The Pirate Bay (and found that they were liable).
Specifically, The Pirate Bay's operators were found liable because they had provided the means for users to infringe copyright and had also facilitated and promoted infringement by users. The Court found that The Pirate Bay had deliberately declined to take steps to prevent or stop infringement where it could have exercised control over its users and the content uploaded. The Court thus concluded that the operators of The Pirate Bay were jointly liable for the infringement committed by the site’s users, as the operators induce, incite or persuade users to engage in copyright infringement.
Having established the operators' liability, The Pirate Bay was found to be infringing copyright under section 20 of the Copyright, Designs and Patents Act 1988. 97A of the same Act entitles the claimants to seek an injunction, which implements Article 8(3) of Directive 2001/29/EC. This is exactly the same way that Newzbin was found to be infringing copyright.
April/May: ordering blocking
On April 30th 2012, an injunction was issued ordering ISPs to block The Pirate Bay. Unlike the Newzbin and Newzbin2 blocking, where some ISPs filtered the site, the ISPs did not protest that the injunction concerning The Pirate Bay was disproportionate. The means of circumnavigating the Newzbin block were outlined during the The Pirate Bay court case, and so full IP address blocking was deemed appropriate. Explanations provided during the injunction hearing are given below:
- This was based on section 97A of the Copyright, Designs and Patents Act 1988 ("the 1988 Act"), which implements Article 8(3) of European Parliament and Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society ("the Information Society Directive"), requiring the Defendants to take measures to block or at least impede access by their customers to a peer-to-peer file-sharing website called The Pirate Bay ("TPB").
- Section 97A of the 1988 Act empowers the High Court "to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright". I have already held that both users and the operators of TPB infringe copyright. In order for this Court to have jurisdiction to make the orders sought by the Claimants, three further matters must be established. First, that the Defendants are "service providers" within the meaning of section 97A. Secondly, that users and/or the operators of TPB use the Defendants' services to infringe copyright. Thirdly, that the Defendants have actual knowledge of this.
All three further matters were duly established.
- Mr Walsh's report (as to which, see the First Judgment at ) drew attention to one particular method by which BT's Cleanfeed system (as to which, see 20C Fox v BT at -), the use of which was required by the order I made in 20C Fox v BT, could be circumvented (as to which, see 20C Fox v BT at -). As Mr Walsh explained, it is straightforward to prevent that method of circumvention by using IP address blocking. IP address blocking is generally only appropriate where the relevant website's IP address is not shared with anyone else. If it is shared, the result is likely to be overblocking (see 20C Fox v BT (No 2) at ). In the present case, however, TPB's IP address is not shared. Thus IP address blocking is appropriate. Accordingly, the Defendants have agreed to orders which require IP address blocking, although the specific technical means to be employed varies from Defendant to Defendant.
- Virgin Media: 2012-05-03
- Orange: 2012-05-11
- Sky: 2012-05-30
- O2: 2012-06-08 
- Block applied to port 80 access only, port 443 unaffected.
- Screenshot showing the block page served by O2 on port 80 (http) and the site simultaneously being successfully accessed on port 443 (https)
- TalkTalk: 2012-06-11
- Redirects to siteblocked.org
- BT: 2012-06-19
Immediately following the blocking order, the Pirate Bay reported that the publicity had resulted in an additional 12 million visitors to their site.
Pirate Party UK proxy
In April 2012, after similar blocking had been introduced in the Netherlands and shortly before the first UK ISP blocks were enacted, the Pirate Party UK introduced a UK-based proxy for avoiding the blocks. This proxy generated a significant amount of traffic and became a major target for removal requests from Google's search index. In November 2012, the BPI sent a letter to the Pirate Party requesting the proxy be deactivated. PPUK indicated that it would not comply with the request and by December 10th, said that they have not yet received indication of any legal proceeding. PPUK announced on 14 December that the members of the National Executive and the party's head of IT, named as individuals, had received letters from the BPI's solicitors.
Promo Bay blocking
it was reported on Sunday 2nd December 2012 that the block was also affecting accesses to promobay.org, a platform for independent artists and not related to infringing content. BT, Virgin Media, and Sky are known to be affected. It is likely that the domain or IP address used for promobay.org was one that was previously associated with The Pirate Bay in the past, and still resides in the ISP blacklists. This incident, whether by design or not, does illustrate a problem in using IP address based blacklists for restricting web content.
On Wednesday 4th December, the BPI contacted the ISPs to instruct them to remove the Promo Bay from their blocking order. A statement by Virgin Media indicates that the URL was explicitly listed in the blocking order.
In April 2013, TorrentFreak reported that Pirate Bay proxy sites were being added to the blocking orders. Since the blocking orders are not available to the public there is no way to independently confirm what additional sites have been added, and if they actually conform with the terms of the judgment.
A considerable amount of content on TPB is legitimate and should not be blocked. We wish to document this.
- Intellectual Property Watch
- Virgin Media cuts Pirate Bay access for millions of punters
- Anonymous hactivists likely to attack Everything Everywhere
- BSkyB blocks The Pirate Bay for millions of Brits
- O2 and Be Broadband are latest to block The Pirate Bay
- Now TalkTalk cuts Brits' access to The Pirate Bay, Register, 2012-06-11
- Pirate Bay blocked by TalkTalk, ZDNet, 2012-06-12
- Pirate Bay Disarms BT Blockade Within Minutes, TorrentFreak, 2012-06-19
- Music Industry Threatens to Sue UK Pirate Party over Pirate Bay Proxy, TorrentFreak, 2012-12-10
- Pirate Party Proxy Shutdown Means Activists Will Fight Another Day, TorrentFreak, 2012-12-19
- Pirate Bay Proxy Now Included in Secret ISP Blocklist, TorrentFreak, 2013-04-17