On May 31, 2023, the Sofia City Court issued a landmark decision in the field of copyright protection, pursuant to which three internet providers were directed to disable the access of their users to peer-to-peer file-sharing platforms Zamunda and The Pirate Bay – to both the main torrent websites and any known proxies allowing access to these platforms.
For years, these two platforms have been the subject of controversy and numerous attempts by different authorities to suspend them. Although at times torrent websites were temporarily blocked or suspended, they are very difficult to ban in the long term due to, among other things, their numerous proxies and VPN circumvention. Unlike other European countries, Bulgaria does not take enforcement actions against users of such torrent websites, meaning such platforms are still quite popular. As a result, they unofficially compete with video-on-demand streaming service providers that operate in the Bulgarian market.
The Decision
The claim (on the basis of which the court proceedings were initiated) was filed against three relatively small Bulgarian internet providers, alleging that the latter act as intermediaries to torrent platforms which infringe the intellectual property rights of certain copyright holders. The defendants’ main line of defense was that under Bulgarian law, there is no such claim for the blocking of websites and that claims for infringement of copyright may only be directed towards the perpetrator, not against the internet provider.
To reach its decision, the court directly applied 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. In its view, this act and the interpretation of the Bulgarian Copyrights and Related Rights Act lead to the conclusion that copyright holders may direct their claim not only against the perpetrators (torrent platforms) but also against internet providers, irrespective of their liability, as they act as intermediaries. Accordingly, the court ordered the three internet providers to disable access to zamunda.net and thepiratebay.org and all their proxies, allowing the internet providers to do so through any technical measures available to them.
Broader Liability
The court, in essence, stated that even though internet providers are not infringing copyrights themselves and will not be sanctioned, they have a responsibility as intermediaries and must disable access to these websites. This finding establishes a new, broader liability together with an opportunity for copyright holders to seek alternative remedies. This is especially important given that previous actions directly against torrent websites had proven to be unsuccessful in practice. By invoking the obligation of intermediaries to take active protection measures, the court grants another layer of compliance.
Although it remains to be seen how the decision will be enforced in practice and for how long the internet providers can keep up with the proxies, this decision opens the door to new and potentially more successful actions against torrent websites, and, hopefully, better protection for video-on-demand streaming service providers and other copyright holders.
On the other hand, this broadened liability can be burdensome for internet providers as they do not have control over the content of websites and may not be able to constantly monitor if there are any copyright infringements.
This liability may also be considered together with the newly adopted Digital Services Act (which entered into force on November 16, 2022) – for example, the so-called “Good Samaritan” clause therein. Pursuant to it, providers of intermediary services (including internet service providers) may adopt any voluntary good-faith actions toward compliance in the knowledge that such actions will not trigger a general monitoring obligation. The continued absence of such a general obligation, together with the fact that similar claims might be associated with significant court and legal fees, might motivate intermediary service providers to proactively seek measures against infringements instead of waiting for claims to be filed against them.
By Georgi Kanev, Head of IP & IT, and Debora Dineva, Associate, Kinstellar
This article was originally published in Issue 10.7 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.
