The Court of Appeals in The Hague lifted a block on The Pirate Bay in the Netherlands Tuesday because the measure was ineffective and disproportionate for two ISPs.
The court overturned the January 2012 verdict of the The Hague District Court court that ordered ISPs Ziggo and XS4ALL to block the Pirate Bay. The Pirate Bay is a search engine that can be used to find "torrents," or small information files that enable the downloading of content on the BitTorrent peer-to-peer file-sharing system, often used to exchange pirated movies, music and software.
Dutch antipiracy foundation Brein, which represents copyright holders in the Netherlands, had sued the ISPs. However, blocks still remain in place at UPC, KPN and Tele 2, whose cases are due to be heard in March. T-Mobile was also ordered to block The Pirate Bay, but is no longer involved in the lawsuit since it sold its ADSL business, a T-Mobile spokeswoman said.
The block at Ziggo and XS4ALL was circumvented on such a large scale by the ISPs' subscribers that it was ineffective, the appeals court noted in its verdict.
Instead of accessing The Pirate Bay directly, subscribers use proxy servers or diverted to alternative torrent sites, the court said, adding that this shows that the block is ineffective. Therefore, there is insufficient justification for the violation of ISPs' fundamental right of freedom of entrepreneurship that is caused by the block, the court said in reversing the District Court verdict.
The Court of Appeals based its ruling on several reports of independent research institute TNO that analyzed XS4ALL's network traffic.
TNO found that the block had no significant effect on the amount of BitTorrent traffic on XS4ALL's network. Analysis showed that the amount of BitTorrent traffic was about the same in the three months after the block was in place as in the three months leading up to the block, the court said. This basically means that the original block was widely circumvented, the court said.
The court only looked at ways the "average 'lazy' surfer" was able to circumvent the block. Methods other than using a proxy or visiting an alternative torrent site were considered too complicated for the average user and were disregarded.
Another report by Amsterdam University's Institute of Information Law found that the number of consumers that downloaded from illegal sources after the block was put in place increased instead of decreased, the court noted. Three months after the initial blockade, 22.5 percent of Ziggo subscribers said that they downloaded from an illegal source. That number increased to 25.2 percent 10 months after the block, the report found, according to the court.
"The circumstance that, despite the blockade, the number of illegal downloaders has increased indicates that newcomers, at least a significant number of them, is not deterred by a blockade to start downloading from illegal sources," the court said.
The verdict assures the freedom of access to information, said XS4ALL spokesman Niels Huijbregts in a statement welcoming the verdict. "That is good for Dutch citizens, good for the Internet and good for ISPs who can keep fulfilling their role neutrally," Huijbregts said, adding that it is XS4ALL's task to provide unimpeded access to the Internet.
Brein director Tim Kuik did not immediately respond to a request for comment.
This is not the end of the road for Brein, though. The case can be appealed to the Supreme Court, said a spokesman for the Court of Appeals. But while the Supreme Court is able to overrule the verdicts of lower courts, it only examines whether a lower court observed proper application of the law in reaching its decision. At this stage of the legal process, the facts of the case as established by the lower court are no longer the subject of the court's scrutiny.
It is too early to say if the case would be appealed, said Brein attorney Joris van Manen, adding that it is certainly worth considering.
Loek is Amsterdam Correspondent and covers online privacy, intellectual property, open-source and online payment issues for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com