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The said file-sharing platform “The Pirate Bay” offers provision and access to already publicly available, but also unpublished works. In its preliminary ruling of 14 June 2017, the CJEU held that a file-sharing platform such as “The Pirate Bay” may constitute “communication” within the meaning of the Directive, even if the works themselves are uploaded to the platform by users.

In this decision it was stated that the filesharing platform operator itself is also subject to the said directive (and may also violate it). Such is the case especially when copyrighted content not published by the copyright holder is available or if the platform operator points to the possibility of creating unauthorised copies of copyrighted works – all to improve profits.

This ruling further paves the way to directly prosecute file sharing operators for copyright infringement.