Court of Justice of the European Union
PRESS RELEASE No 64/17
Luxembourg, 14 June 2017

Press and Information

Judgment in Case C-610/15
Stichting Brein v Ziggo BV, XS4ALL Internet BV

Making available and managing an online platform for sharing copyright-protected
works, such as ‘The Pirate Bay’, may constitute an infringement of copyright
Even if the works in question are placed online by the users of the online sharing platform, the
operators of that platform play an essential role in making those works available
Ziggo and XS4ALL are internet access providers. A significant number of their subscribers use the
online sharing platform ‘The Pirate Bay’. This platform allows users to share and upload, in
segments (‘torrents’), works present on their computers1. The files in question are, for the most
part, copyright-protected works in respect of which the rightholders have not given the operators or
users of that platform consent to share those works.
Stichting Brein, a Netherlands foundation which safeguards the interests of copyright holders, has
brought proceedings before the courts in the Netherlands seeking an order that would require
Ziggo and XS4ALL to block the domain names and IP addresses of ‘The Pirate Bay’.
The Hoge Raad der Nederlanden (Supreme Court of the Netherlands), before which the dispute
has been brought, has decided to refer questions to the Court of Justice on the interpretation of the
EU Copyright Directive2. The Hoge Raad wishes, in essence, to ascertain whether a sharing
platform such as ‘The Pirate Bay’ is making a ‘communication to the public’ within the meaning of
the directive and may therefore be infringing copyright.
In today’s judgment, the Court holds that the making available and management of an online
sharing platform must be considered to be an act of communication for the purposes of the
directive.
The Court first draws attention to its previous case-law from which it can be inferred that, as a rule,
any act by which a user, with full knowledge of the relevant facts, provides its clients with access to
protected works is liable to constitute an ‘act of communication’ for the purposes of the directive.
In the present case it is common ground that copyright-protected works are, through ‘The Pirate
Bay’, made available to the users of that platform in such a way that they may access those works
from wherever and whenever they individually choose.
Whilst it accepts that the works in question are placed online by the users, the Court highlights the
fact that the operators of the platform play an essential role in making those works available. In that
context, the Court notes that the operators of the platform index the torrent files so that the works
to which those files refer can be easily located and downloaded by users. ‘The Pirate Bay’ also
offers — in addition to a search engine — categories based on the type of the works, their genre or
1

BitTorrent is a protocol through which users can share files. The files to be shared are divided into segments, which
reduces the burden on individual servers during the sharing process. In order to be able to share files, users must first
download specific software which allows the creation of torrent files. Torrent files refer to a central server which identifies
the users available to share a particular torrent file as well as the underlying media file. Those torrent files are uploaded
to the online sharing platform, which then proceeds to index them so that they can be located by users of the online
sharing platform and the works to which those torrent files refer can be downloaded onto the users’ computers.
2
Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

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 their popularity. Furthermore, the operators delete obsolete or faulty torrent files and actively filter
some content.
The Court also highlights that the protected works in question are in fact communicated to a public.
Indeed, a large number of Ziggo’s and XS4ALL’s subscribers have downloaded media files using
‘The Pirate Bay’. It is also clear from the observations submitted to the Court that the platform is
used by a significant number of persons (reference is made on the online sharing platform to
several tens of millions of users).
Moreover, the operators of ‘The Pirate Bay’ have been informed that their platform provides access
to copyright-protected works published without the authorisation of the rightholders. In addition, the
same operators expressly display, on blogs and forums accessible on that platform, their intention
of making protected works available to users, and encourage the latter to make copies of those
works. In any event, it is clear from the Hoge Raad’s decision that the operators of ‘The Pirate Bay’
cannot be unaware that this platform provides access to works published without the consent of
the rightholders.
Lastly, the making available and management of an online sharing platform, such as ‘The Pirate
Bay’, is carried out with the purpose of obtaining a profit, it being clear from the observations
submitted to the Court that that platform generates considerable advertising revenues.

NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes
which have been brought before them, to refer questions to the Court of Justice about the interpretation of
European Union law or the validity of a European Union act. The Court of Justice does not decide the
dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s
decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.
Unofficial document for media use, not binding on the Court of Justice.
The full text of the judgment is published on the CURIA website on the day of delivery.
Press contact: Holly Gallagher  (+352) 4303 3355
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