With torrent sites dominating the high seas of piracy in 2006, Bulgarian authorities decided to arrest Eliyan Geshev, administrator of the the country's most popular tracker, ArenaBG.
Public uproar in Bulgaria was significant but just a day later, Geshev was a free man once again. After police provided zero evidence of any crimes being committed, a court found no grounds for Geshev's initial arrest. Reporters who attempted to interview Geshev as he left court suddenly found themselves attacked by security guards.
In advance of Geshev being detained, the government had promised to "show no mercy" when targeting pirate site operators. In the wake of his release, Bulgarian authorities charged with tackling organized crime ordered ISPs to block ArenaBG.
Three ISPs said they would comply, others refused after declaring site-blocking "illegal."
Site-Blocking Returns 15 Years Later
At the time, ArenaBG was hosted in the U.S. so in theory could've been handled there. In the end that wasn't necessary as the blocking instructions against ArenaBG were withdrawn. In other EU countries, site-blocking plans were quietly gaining traction and would continue to do so.
Neighboring Greece approved blocking measures in 2012. Progress was dampened three years later due to constitutional concerns but today, Greece is a fully-fledged member of the EU site-blocking club, alongside its latest recruit: Bulgaria.
A decision handed down May 31, 2023 at the Sofia City Court requires three Bulgarian internet service providers to block two major torrent platforms. The names of the ISPs are unhelpfully redacted in court documents, but not so the names of the sites. Somewhat predictably, The Pirate Bay makes yet another appearance in a site-blocking action, along with Zamunda, the most popular torrent site in Bulgaria.
Recording Industry Behind The Action
The initial claim was filed in February 2020 by the Bulgarian Association of Music Producers (BAMP) with support from IFPI, the International Federation of the Phonographic Industry.
Court documents reveal that the claimants requested a dynamic injunction against the main domains of The Pirate Bay and Zamunda, plus any other domains, sub-domains, mirror and proxy sites that may facilitate access to the sites in future.
Based on claims that over 90% of the sound recordings indexed by the sites are protected by copyright and shared illegally by Bulgarian BitTorrent users, BAMP and IFPI referenced the CJEU ruling in the BREIN/ Ziggo case (C-610/15). The CJEU found that ISPs in Member States can be ordered to block access to The Pirate Bay, even though the site itself stores no infringing content.
In respect of the three unnamed ISPs, the claimants said that since they're intermediaries whose services are used by third parties to infringe copyright, under Article 8, paragraph 3 of Directive 2001/29/EC the following applies:
Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right
In written responses filed by two of the three ISPs, BAMP and IFPI's claims were bluntly described as "inadmissible."
Bulgarian ISPs Fight Back
One of the ISPs, identified only as 'N.1' in court documents, described the claim as unfounded and inadmissible, adding that it "opposes the active legitimization of the plaintiff." The ISP also pointed out that Bulgarian law does not recognize a claim "for blocking access to Internet sites." As for EU law requiring Member States to ensure access to injunction applications, that would not apply here because Bulgaria hadn't yet transposed that into national law.
Pushing back further still, the ISP disputed allegations that it enables subscribers to commit copyright infringement on the torrent sites, so therefore disputes that its subscribers use the sites to download pirated content using BitTorrent. In summary, the ISP asked for the claim to be rendered inadmissible or possibly rejected as unfounded.
The ISP identified as 'F.1' used the words 'inadmissible' and 'baseless' to describe the claim. The ISP said that the claim was filed for the "termination of a violation" but since the claim failed to provide any details in respect of the ISP, conducting an effective defense would be difficult. In common with 'N.1', the ISP 'F.1′ asked for the claim to rendered inadmissible or rejected as groundless.
After the ISPs questioned the accuracy of translations, and the authenticity and validity of IFPI/BAMP legal documents, the Court appointed forensic experts to investigate. The details of the various findings occupy a large part of the decision, including details of a dispute related to the claimants' standing to bring a claim and the eventual termination of claims relating to unnamed foreign music producers.
ISPs Required to Block Pirate Bay and Zamunda
The Sofia City Court ultimately decided that the ISPs must block both sites.
"[T]he defendant companies, in their capacity as providers of Internet access, should be sentenced to take action within a period of up to six months, the necessary actions to stop the illegal use by envisaging and implementing measures aimed at blocking the Internet access of its users, to the web pages on which the online file sharing platforms 'ThePirateBay' and 'Zamunda' are accessible."
The ISPs will be able to determine their own methods of blocking to "best match their resources and capacity," with a threshold of "at least making it difficult to carry out unauthorized visits" to The Pirate Bay and Zamunda.
Industry Groups Stay Positive
In a joint press release, the recording industry groups focused on the positives.
"We welcome the decision of the Sofia City Court, which marks a major step forward in the recorded music industry's fight against online music piracy," said BAMP executive director Petya Tocharova
"For the first time in Bulgaria, a court decision has been issued to block access to pirate websites, and we consider this precedent an important step in the right direction."
Francis Moore, Chief Executive of the IFPI, said: "We welcome this decision and the impact it will have on curbing illegal access to music. Copyright infringement of any kind causes serious harm to local music ecosystems and diverts money away from those who create and invest in music."
Whether blocking two torrent sites will have much of an impact on music piracy is unclear. Research cited in the blocking decision reported 27,000 files containing music available via The Pirate Bay and 44,000 on Zamunda. The overwhelming majority of music piracy today involves content ripped from YouTube, a site with dozens of millions tracks completely unhindered by blocking.
Measurable impact of site-blocking on piracy tends to appear when many sites are blocked at once, at least according to industry reports. That raises the prospect of numerous return visits to Bulgarian courts, in potentially adversarial circumstances, at a time when cooperation is seen as the only real solution to a very complex problem.
From: TF, for the latest news on copyright battles, piracy and more.
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