Notorious movie and TV show streaming site Kino.to has long since closed and its operators punished, but its legacy lives on in the legal realm.
The current dispute involves Austrian ISP UPC Telekabel Wien and movie companies Constantin Film Verleih and Wega Filmproduktionsgesellschaft. The film companies complained that the ISP was providing its subscribers with access to Kino.to which enabled them to access their copyrighted material without permission.
Interim injunctions were granted in the movie companies’ favor which required the ISP to block the site. However, the Austrian Supreme Court later issued a request to the Court of Justice to clarify whether a provider that provides Internet access to those using an illegal website were to be regarded as an intermediary, in the same way that the host of an illegal site might.
In his opinion handed down today, Advocate General Pedro Cruz Villalón said that the ISP of a user accessing a website said to be infringing copyright should also be regarded as an intermediary whose services are used by a third party, such as the operator of an infringing website.
This means that the ISP of an infringing site user can be subjected to a blocking injunction, as long as it contain specifics on the technicalities.
“The Advocate General is of the view that it is incompatible with the weighing of the fundamental rights of the parties [freedom of information, freedom to do business, copyright protection] to prohibit an internet service provider generally and without ordering specific measures from allowing its customers to access a particular website that infringes copyright,” the opinion reads.
“However, a specific blocking measure imposed on a provider relating to a specific website is not, in principle, disproportionate only because it entails not inconsiderable costs but can easily be circumvented without any special technical knowledge. It is for the national courts, in the particular case, taking into account all relevant circumstances, to weigh the fundamental rights of the parties against each other and thus strike a fair balance between those fundamental rights,” the adviser notes.
The Advocate General also notes that operators of piracy-related websites and their hosts often base themselves outside Europe or take steps to mask their identities. This, he says, makes it difficult to bring cases before the courts. Nevertheless, whenever possible rightsholders must first issue claims directly against site operators or their providers.
The legal opinion is not legally binding and the Court of Justice is entitled to disregard it, but the Court often follows the AG’s advice in such cases. Deliberations in the Kino.to case are just beginning and a judgment will be handed down at a later date.