Pirate Bay, Free to Play

Just two short years after the Hague District Court’s decision to block access to The Pirate Bay (TPB), Dutch Internet Service Providers (ISPs) Ziggo and XS4ALL are able to release the iron gates, once again allowing customers direct access to the peer-to-peer (P2P) file-sharing site. The Hague Appeals Court determined that blocks were ineffective and easy to circumvent, causing the number of consumers illegally downloading copyrighted content to rise. Thus, as the blocks unjustly infringed upon ISPs’ rights, the Court had no choice but to order their removal. With hot button topics like piracy, net neutrality, and freedom of the Internet floating around lately, this decision was one of great controversy and importance for the Netherlands and the EU.

As a P2P file sharing site, TPB allows users to access and download copyrighted content such as music, videos, and software for free. Sites like TPB offer a platform for users to upload content for others to download on their own volition, thus claiming no responsibility for its users’ activity. The ISP’s role is to simply provide a fast and reliable Internet connection so that downloads are quick and seamless, regardless of the content or source. With this free and easy option for owning content, it is difficult to convince users to actually pay for content. In addition, Internet freedom supporters strongly oppose any barriers, including monetary ones, to access to content available via Internet. If that is not enough, net-neutrality supporters offer a similar argument from a different angle, which ironically puts them on the same side of the court as ISPs for once. Where ISPs are fighting net neutrality for the right to set rates according to bandwidth usage in general, they acknowledge their shared interest with net-neutrality supporters in this case. That is, the net-neutrality goal of making sure users are free to choose what content to consume and from where, by assuring the same access to all content providers at a flat rate, includes the right to access sites like TPB without additional barriers.

Thus, content creators and their supporters like BREIN, an association committed to the protection of the rights of the entertainment industry of the Netherlands, face an uphill battle in trying to protect this content that is so freely tossed around in the Internet playing field. Having finally gotten the court’s support in 2012, BREIN was shocked to see the court of appeals withdraw that support, ruling in opposition to previous EU decisions regarding file-sharing sites. However, the Court in its decision did not even touch upon net neutrality or freedom of the Internet, nor did it take a stance against protection of copyrighted content. It simply found that blocking TPB was a poor way to accomplish BREIN’s purported goal of decreasing the total number of infringements. As soon as the court-ordered blocks were implemented in 2012, TPB circulated links to proxies and instructions for other ways to circumvent the blocks and access content illegally. Ultimately, the decrease in direct access and traffic to TPB correlated with an increase in illegal downloading through the ISPs. This supported the ISPs’ argument that the blocks only exacerbated the problem it intended to solve. In exercising the only option it had of lifting the ineffective blocks on TPB, the Court suggested that BREIN would have to do the impossible and find a way to completely block TPB and all BitTorrent (a common protocol used to transfer large files via Internet) traffic in order to justify having any blocks at all.

Despite its shortcomings and the looming task of defeating TPB, BREIN plans to appeal to the Dutch Supreme Court in hopes of gaining a more permanent victory. As it stands, the courts are the only hope BREIN and content creators have. The legislature intently excluded language on this matter when drafting its net-neutrality statues, purposely leaving to the judiciary the task of regulating piracy of copyrighted content via the Internet. Several EU nations currently have court-ordered blocks on TPB, but the court is also set to review two more appeals in March involving other ISPs that were also ordered to block TPB in January of 2012. There does not seem to be a fathomable way for these two sides to compromise. Thus, whether it likes it or not, the Supreme Court in its decision may finally have to choose what is more important: freedom of the Internet and true net neutrality, or the protection of copyrighted content.

Source: The Epoch Times