Copyright Supports Injunction Against ISP, E.U. Court Rules
LUXEMBOURG — ISPs can be ordered to block copyright-infringing websites if the rights of users and the ISPs are also protected, according to Europe's highest court.
Thursday's ruling involves file-sharing site Kino.to, which was alleged by two Austrian film companies — Constantin Film Verleih and Wega Filmproduktionsgesellschaft — that it illegally streamed their content to users via UPC Telekabel, an ISP.
The now defunct file-sharing site, which hosted links to German language versions of thousands of copyright protected videos, was closed in 2011 after raids at apartments, offices and data centers in Germany, France, Spain and The Netherlands.
Kino.to had 4 million visitors a day and was among the 100 most-visited websites in Germany, Austria and Switzerland, countries where German is spoken.
While UPC Telekabel has no connection to the site, the content owners sought a court order forcing the ISP to block its users from the site.
A trial court granted an injunction, and an appeals court affirmed. But both courts didn’t specify how UPC Telekabel should carry out the block, and the Austrian Supreme Court asked the Court of Justice of the E.U. to weigh in.
E.U.’s highest court held Thursday that UPC Telekabel is a party to copyright infringement when it allows its users to access protected material from a third party.
"E.U. law requires that the measures which the member states must take in order to conform to that directive are aimed not only at bringing to an end infringements of copyright and of related rights, but also at preventing them," the E.U. high court said. "Such a preventive effect presupposes that the holders of a copyright or of a related right may act without having to prove that the customers of an ISP actually access the protected subject-matter made available to the public without their agreement."
UPC Telekabel deserves the opportunity to implement its own block, targeted only at Kino.to to avoid inconveniencing users, the E.U. high court said.
"Consequently, even though the measures taken when implementing an injunction are not capable of leading, in some circumstances, to a complete cessation of the infringements of the intellectual property right, they cannot however be considered to be incompatible with the requirement that a fair balance be found between all applicable fundamental rights, provided that (i) they do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that they have the effect of preventing unauthorized access to protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject matter that has been made available to them in breach of the intellectual property right," the E.U. high court said.