Private TV stations have achieved groundbreaking preliminary rulings. Major operators have had to cut off access to several file-sharing repositories.

Customers of several operators, including Vodafone, T-Mobile, and O2, are experiencing problems loading the Datoid, eDisk, and SledujteTo internet storage sites. Under standard conditions, these sites are unavailable for most clients, but this is not due to technical problems. The reasons are legal actions by private TV stations following long-standing copyright infringements by repository operators.

Members of the Association of Commercial Television (AKTV) - TV Nova and TV Prima - have applied to the Regional Court in Brno to issue a preliminary ruling ordering six operators to block access to specific domains.

"We only take the most severe measure, a motion to block the entire domain, when we have exhausted the milder options for protecting our members’ copyrights. This was the case for both eDisk and Datoid,"

Klára Brachtlová, President of AKTV, explains in an interview for DigiZone.

It was Datoid that drew attention to the recent preliminary ruling. “It is absolutely unbelievable that it actually happened in a democratic society that a judge decided to make the service unavailable to several millions of users without the service provider being able to defend itself in any way and to express its position (it was done with immediate effect while the Court of Appeal will probably not rule for several months!),” the service provider wrote in an official statement.

“We understand the commercial broadcasters’ interest in protecting their copyrighted works, and we have always and promptly satisfied their requests to remove the reported content - but we have also always fought to ensure that the rights of our users are not harmed (e.g. when user content was repeatedly reported as infringing even though it didn’t infringe anything, just had the same name as the current series),” says Datoid.

However, AKTV has a very different opinion on Datoid’s alleged willingness. Klára Brachtlová reminds us that since January last year, an amendment to the Copyright Act has been in force, which introduced the obligation to “notice and stay down”.

“This means that when a copyright holder calls and reports that they have a copyright in a film, TV show or music album, the repository operator has an obligation to prevent the distribution of the copyrighted content through its service. This means not only deleting all reported copies but also putting in place technical measures to ensure that the work can no longer be publicly shared or uploaded at all,” she adds.

According to Brachtlová, commercial broadcasters are first trying to reach an out-of-court settlement. They call on the operators of the storage sites to take measures under the law. The association even offers to cooperate with them on technical solutions, such as automatic filters. “However, a number of repositories continue to claim that their obligations under the current legislation are limited to removing a specific reported file, and that closes the whole matter for them. However, this has not been the case since at least last year’s amendment, and it was not entirely the case before,” continues the Association’s President.

If the repository is not willing to come to an agreement, the next step is to take the operators to court where the commercial stations seek protection for specific series or shows.

"In other words, we require repository operators to ensure that our members’ works are not available on their service. In the first phase, which was the case with eDisk and Datoid, we sought judicial protection for specific works, not blocking the entire service,”

adds Klára Brachtlová.

Although the court ruled in favour of the commercial TV companies, the operators ignored the decision, and enforcement proceedings followed. At this stage, the repositories are gradually imposed fines that can total millions of Czech crowns. However, some operators do not pay these fines because they are officially destitute. Instead, they look for ways to avoid the preliminary ruling, for example by changing the operator to another entity, sometimes outside the EU, or by changing the domain.

“In the case of Datoid, the operator did not collect mail from the data box, did not comply with the preliminary ruling and the enforcement procedure has had no results because the bailiff has not been able to identify any assets. Beyond our duties, we even urged Datoid to voluntarily comply with the court’s order before the enforcement procedure was initiated – all in vain,” says AKTV’s President, explaining what preceded the blocking of the domains.

The eDisk repository tried an evasive manoeuvre with a formal move to Seychelles. “I don’t know who their advisor is, but it is a mistake to think that this will grant them impunity. In this situation, we had no choice but to seek the blocking of the domain,” adds Klára Brachtlová.

The preliminary rulings list the Czech and Slovak domains of the three repositories where copyright infringement is taking place and commercial TV stations have exhausted other instruments. “We are suing the operators to deny their customers access to the addresses where the court finds there is a legal reason to do so,” Brachtlová explains. At the same time, this resolves the situation where the storage is not on a Czech domain.

However, blocking access to a domain is not a one-size-fits-all solution. The repositories are not parties to the proceedings because the operators are the defendants, so they cannot challenge the preliminary rulings. However, Datoid moved to another URL immediately, and eDisk and WatchTo have also launched alternative addresses.

In addition, the preliminary rulings apply to only six selected internet service providers out of almost two thousand. And the repository is actively and very specifically advising users how to technically bypass the measures to get back on the site. AKTV is aware of the technical limits but is convinced that most ordinary users will be discouraged by these steps.

“Even on the new Datoid domain, we have tracked down more than 100 works of our members that are there illegally just by a random, quick search. We are also determined to crack down hard and uncompromisingly on these tactics with all available means,” says AKTV’s President in response to the latest developments. Among other things, commercial broadcasters are irritated by the business model of repositories that incentivise users to upload files with various rewards and/or collect money for faster downloads. In addition, foreign copyright works are ‘wrapped’ in advertising.

“The repositories are now referring to this as being like cancelling an entire bus route because of two stowaways, but they got themselves into this situation by their own attitude. Because if we go by that analogy, they drive and operate the bus without regard to traffic laws, and despite numerous calls, they don’t respect traffic lights or stop signs. And such a driver will eventually have his or her licence revoked after exhausting less strict measures such as fines and penalty points. It is exactly the same with the operators of the repositories,” says Klára Brachtlová, referring to Datoid’s reaction.

Finding and reporting links costs time and money. “Just to give you an idea, every day broadcasters send hundreds of links to about ten so-called repositories where copyright infringement is most common on the Czech internet. I dare say that all repositories are aware that much of illegally shared content is found on their services,” adds the President of AKTV.

The Association would therefore welcome a more automated mechanism. For example, in Greece, France, Italy, and Lithuania there are blocking authorities that can intervene faster than the courts against illegal content. In Western Europe, for example, this is how they deal with illegally streamed sports matches. Czech politicians, however, are not too keen on this approach.

The chair of the Czech Pirate Party’s parliamentary club was upset by the current shutdown of domains. “I understand that the courts block unauthorised films and fine companies for that, but to shut down normal user data is too much! And I will adequately propose the abolition of the absurd fees of a few percent of the price of mobile phones, computers, and memory because they are fees for nothing. Downloads of copyrighted works have been greatly reduced and many more people pay for Netflix, Spotify, and YouTube, so I don’t know why they should pay 100 million a year for nothing,” said Jakub Michálek.

Commercial broadcasters remind that illegal access to protected works is a criminal offence and a number of uploaders have already been convicted and ordered to pay millions in damages.

“Our experience shows that where there is a will, there is a way. The excuses of many repositories that the demands of our members are not realistic and that it is technically impossible to ensure filtering of our members’ content are not true. Our cooperation with and clearly shows that the protection of our copyrights can be ensured in cooperation with the repository operator. We firmly believe that other repositories will join FastShare soon,”

adds Klára Brachtlová, referring to a promising example.