Stichting Brein v. Ziggo

Key takeaways

The Pirate Bay does not store pirated files: the site merely indexes them so that users can share them with each other. Its defenders saw this as a legal loophole. The Court of Justice rejected it.

By indexing the files, sorting them and removing obsolete links, the site's operators play an essential role in giving access to the works. They therefore carry out a communication to the public themselves. For video games, widely shared on these platforms, the ruling closes a convenient way out.

The case pitted a Dutch anti-piracy foundation against two internet access providers, which it asked to block the site. The Court relied on three elements: the operators act in full knowledge of the facts, their platform is indispensable to the sharing, and they pursue a profit-making purpose. The ruling adds to a series opened by GS Media (2016) on links and continued by YouTube / Cyando (2021) on platforms.

In practice, this classification opens the way to blocking injunctions. In France, right holders can ask the court for them on the basis of Article L. 336-2 of the Intellectual Property Code, and Arcom can extend the measure to mirror sites.