Before the Tribunal de Grande Instance of Paris, the Société Civile des Producteurs Phonographiques (SCPP) obtained the blocking for one year of Extratorrent, Torrent9 , Isohunt, Cpasbien, as well as their mirror and redirection sites. Bouygues, Free, Orange, SFR and Numéricable will be responsible for the resulting costs.
On February 6, 2017, the collective management company of the major record companies assigned in the form of referrals Bouygues, Free, Orange, SFR and Numéricable for the purpose of blocking these four sites as well as their replicas and other redirection addresses.
Like the film industry, which multiplies actions on this basis, the SCPP relied on Article L336-2 of the Intellectual Property Code. A text transposed into European law on the occasion of the Hadopi law and which makes it possible to order all measures to prevent or stop a copyright infringement.
On the date of the findings, the society noted that on Extratorrent – a site that closed in May, ” of the 50 most downloaded musical contents, 35 corresponded to albums or titles that belonged to the SCPP social repertoire”, i.e. 70%. This rate is 78% at Torrent9 and varies between these two extremes at the other sites involved.
For the High Court these minutes ” sufficiently establish the illicit nature of the “extratorrent, torrent9, isohunt, cpasbien” sites and mirror or proxy sites”. He adds that:
” Thus by providing Internet users with the possibility of downloading or streaming works from hypertext links presented on the disputed sites, even if the content is stored on third-party servers or platforms, these operators have enabled Internet users to download the disputed works by providing the availability of the content, i.e. have given Internet users the means to reproduce works, the rights to which they did not hold. »
Among the ranks of access providers, the only ones to be assigned by the SCPP, which, curiously, did not see fit to take action with Google or Bing, none of them contested the illegal nature of the sites pinned.
The principle of blocking was also not contested by the majority of them, provided that it is proportional, limited in time and that operators have freedom of choice in the technology to be borrowed. Only Free really stressed that these measures were walls of paper, given the ease of circumvention.
The Court of First Instance, however, dismissed this remark:
” While it is true that any blocking measure can be circumvented by some Internet users it has not been established that the vast majority of Internet users who are attached to free communications and many services on the Internet, has a strong will to participate in large-scale, globalized piracy and the measures requested are aimed at the largest number of users, who do not necessarily have the time and skills to look for the means of circumvention that specialists find and keep in memory “.
Thus, in his view, blocking is ” the only truly effective means currently available to intellectual property rights holders to combat counterfeiting on the Internet “.
But the hard point has been the cost issue. All the operators have requested that the costs resulting from the blocking measures be borne by the SCPP alone. And this one obviously claimed the exact opposite.
The charges in question are ridiculous on the face of it. 25 euros at Bouygues, Orange evokes 88.31 euros per domain name. At SFR Numericable, the amount varies between 250 and 450 euros. 147.13 according to Free.
However, although the amounts are small in relation to the economic weight of these mastodons, the company dear to Xavier Niel noted, according to the comments summarized by the judgment, that ” this cost could increase, in particular due to the effect of thresholds if the number of claims were to increase considerably since new resources would have to be committed “.
In short, the ISPs fear that, by being condemned to take responsibility for blocking, the valves will be opened with an industrialization of blocking measures. The recent wave of subpoenas and decisions does not entirely prove them wrong.
In other sectors, the question does not arise: ISPs do not have to bear the costs of identifying IPs addressed by Hadopi, they are relieved of the costs resulting from judicial requisitions, just as for the blocking of online games (ARJEL law).
The French High Court found in substance that there was no text opposing the assumption of blocking by ISPs. The Court of First Instance will point out that, conversely, no text provides for such an obligation on the basis of Article L336-2 of the Intellectual Property Code.
For the present case, after examining European case law, the President Marie-Christine Courboulay, Vice-President of the Court of First Instance, will finally reply that ” the costs of blocking measures will be charged to ” of the ISPs.
This cost is not unbearable for these companies, does not compromise the viability of their Business model and does not undermine entrepreneurial freedom. Obviously, the low amounts exposed by the ISPs were fatal to them at the bar: ” of the very reasonable amounts in relation to the financial surface area of ISP companies (from 25 euros to 450 euros depending on the company)“.
Other factors were also taken into account: in the past, no provider has passed on these costs to right holders, who, for their part, have had to bear the “significant costs of identifying illegal sites “.
With regard to mirror sites, a basic principle has been recalled by the Paris Court of First Instance: ” the number of sites that must be subject to a ban on access is limitatively fixed by the present judgment and any measure affecting another site must be authorised by a judicial authority, ISPs having no obligation to monitor content and the SCPP having no right to block access to sites without prior control by the judicial authority “.
In other words, if any of the blocked sites are reopened, the parties will have to return to the judge to update the database, unless otherwise agreed. In the meantime, here is the list of sites, mirrors and redirection blocked by this judgment of November 2, 2017.
Sites of origin :
- torrent9.civil code
Mirror sites :
Redirection sites :
One will notice in the list ” torrent9.civil code “, probably the result of a self-completion error in the word processor used by the magistrate…
- Download the judgment of the Paris Court of First Instance of 2 November 2017