Pirate Bay has no safe harbour in E-Commerce Directive
The case B13301-06, Plaintiffs (Sony & many others), Defendants (Carl Ulf Sture Lundstrom and others) was a decision from the Stockholm District Court relating to the infamous Pirate Bay website. It concerned not only criminal breaches of copyright (and some curious drug-related activities) but also the E-Commerce Directive (2000/31/EC) safe harbour provisions. This analysis will focus on the latter as the criminal copyright aspect is concerned with Swedish domestic law.
The defendants were held to be criminally liable for acts which infringed the Swedish Copyright Act. The court then had to decide whether the defendants could avoid some penalties flowing from their liability, using the E-Commerce Directive and its implementation in Swedish law.
No music or video files are uploaded to the Pirate Bay websites, rather torrent files are uploaded to it by its users which merely contain the information needed to direct one user (using bit torrent software) searching for a music/video or other file to the hard disk of another user where that file is stored and thereby facilitates the internet transfer of copies of such files, peer-to-peer.
The first question relating to the E-Commerce Directive concerned whether Pirate Bay was providing "information society services" within the meaning of that Directive.
It was decided that because the defendants were involved in the operation of a service that allowed data files to be shared, they must be taken to be providers of information society services. Users of Pirate Bay do not pay for the ability to upload or download torrent files to or from the site nor to use the "tracker" software which allows them to find other users who have the music or video file to which the torrent file relates. However it was held that the lack of such direct payment did not take the services outside the definitions in the Directive.
This was because the necessary element of "remuneration" was fulfilled by Pirate Bay obtaining advertising revenue from web traffic obtained through providing the "free" services. This conclusion is unsurprising in the light of the wording in the recitals of the Directive that:
"information society services are not solely restricted to services giving rise to on-line contracting but also, in so far as they represent an economic activity, extend to services which are not remunerated by those who receive them...information society services also include services consisting of the transmission of information via a communication network, in providing access to a communication network or in hosting information provided by a recipient of the service".
The court looked at the safe harbour provisions in the Directive (and the domestic enabling legislation). The first provision of the E-Commerce Directive considered was article 12 (the service provider as "mere conduit" provision). A service provider cannot benefit from this provision if it initiates the transmission of information, selects the receiver of that transmission or selects or modifies the information contained in the transmission. More importantly here, if the transmitted information is stored then that storage must also be "automatic, intermediate and transient". The court decided that because Pirate Bay provided server space for uploading and storing torrent files, this activity was not automatic, temporary and intermediate. Therefore the court held the "mere conduit" provision could not apply.
The court also looked at the "caching" provision in article 13 of the Directive. It decided that caching was not the function of the server to which torrent files could be uploaded and on which they could be stored – it had already decided the storage was not "automatic, intermediate and transient" nor was it "temporary". To benefit from the caching provision, the storage would need to have been "for the sole purpose of making more efficient the information's onward transmission to other recipients of the service". Torrent files were not stored on Pirate Bay for such a purpose.
The hosting provision of the Directive may however in some circumstances have applied to such a service. This provision (article 14) provides –
1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
- the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
- the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
However the court concluded that the defendants could not benefit from this either. Although the use of torrent files meant that Pirate Bay never actually stores copyright works on its servers it was held that the defendants were aware of the fact that many copyright works were being made available from one user to another via the torrent files that were stored on Pirate Bay. Furthermore the defendants deliberately chose to ignore this.
The court acknowledged that the defendants might not have been aware that the exact copyright works that were the subject of the case were being made available via specific torrent files hosted on the site. However the court held that the Defendants knew that copyright works in general were being shared in this way. The defendants had been urged to take down torrent files from the website many times and therefore it must have been apparent to them that Pirate Bay contained torrent files which related to protected works. Despite this they did not remove any such torrent files. In fact the defendants posted complaints from representatives of rights owners on the site simply for them to be ridiculed.
If this were an English civil claim it would of course call to mind the House of Lords' judgment concerning twin tape decks: CBS Songs v Amstrad. This established that under English law merely facilitating the making of infringing copies is not enough to establish secondary liability for the infringing actions of the users of the equipment. Although clearly such equipment could be used to make infringing copies of copyright works, it could also be used for other legitimate purposes such as making demo tapes. Although Amstrad may well be aware that its equipment would probably be used to infringe someone's copyright once it was sold it had no control or interest over its use and as such the allegation that it was jointly liable when the equipment was so used "was untenable".
English criminal law however goes further in that acts which knowingly facilitate the commission of a crime (e.g. criminal copyright infringement) amount to the crime of aiding and abetting - even if they do not make the aider liable in civil law as a joint tortfeasor.
Furthermore CBS v Amstrad is arguably distinguishable from Pirate Bay since the defendants were doing much more than merely knowingly facilitating the infringement of copyright; they arguably procured (induced, incited or persuaded) its users to infringe.
However, the wider question raised concerns where the line must be drawn on the safe harbour provisions in the E-Commerce Directive. Does lack of knowledge of any specific copyright infringement suffice to confer immunity from liability under the safe harbour provisions? If not, when will someone without such specific knowledge be denied the protection of these provisions?
The Swedish court's view was that that a lack of knowledge of the specific offending files was not enough for Pirate Bay to benefit from this shield. However the court does not appear to have fully considered that the E-Commerce Directive explicitly provides that information service providers cannot be placed under any "general obligation...to monitor... the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity".
The Swedish court relied in part on the high proportion of torrent files on the Pirate Bay website that related to infringing copies of protected works. But what the particular threshold required to deny protection is unclear. More than 30%, more than 50%? Other providers of peer-to-peer file-sharing services do accede to specific take-down notices. Will such services nevertheless be liable for infringements occurring before they receive a take-down notice on the grounds merely that a large proportion of the file shared via their service are infringing and they were aware of that? Pirate Bay's approach in contrast appeared to be essentially "whatever copyright is being infringed by those using our website to find songs etc. we will not take down the bit torrent file that enables that infringement of copyright to take place". This particularly blatant approach may well have been instrumental in barring them from a safe harbour.
The defendants asked for a reference to be made to the European Court of Justice (ECJ) concerning whether the E-Commerce Directive should provide them with a safe harbour. However the defendants had not drafted any specific suggested questions to put forward to the ECJ, rather they hoped the national court would do this and then they could comment. The Swedish court dealt with this swiftly - the relevant legislation was sufficiently clear to it and no reference was required.
This analysis was written by associate Laura Thomson (firstname.lastname@example.org) and Bonita Trimmer (email@example.com), an associate and professional support lawyer in Wragge & Co LLP's Intellectual Property team.
This analysis may contain information of general interest about current legal issues, but does not give legal advice.