VPN providers and Cloudflare have to make a reasonable effort to block pirate sports streams in France. They do not have to succeed. That is the conclusion of two rulings from the Paris Judicial Court, reported by Ernesto Van der Sar for TorrentFreak and first disclosed by the French outlet L'Informé.
The dispute began in May, when the court ordered several VPN providers to block ten pirate sites and IPTV services that streamed WTA tennis matches, among them thetvapp.to and tennistream.com. The order was requested by beIN Sports, which holds the exclusive French rights to most WTA tour matches. A day later the broadcaster secured a similar order against Cloudflare.
In its initial request, beIN asked for penalties of 2,000 euros a day for each domain that two of the VPN providers failed to block. The court refused, finding nothing to show that the providers intended not to comply, and left the door open for the parties to return if problems arose.
They arose. The broadcaster went back to the court complaining that the sites had not been fully blocked, and this time asked for a daily penalty of 10,000 euros for every domain that remained accessible.
Cloudflare, Surfshark and NordVPN, all represented by the same lawyer, cited technical constraints and said they had done their best. Proton was also targeted but did not attend the hearing.
The blocking was indeed incomplete. Cloudflare blocked three of the four sites, and only through its content delivery network. Surfshark and NordVPN blocked six of eleven, and only through the DNS service on their servers in France.
For the court, that was enough. In two rulings issued on 7 October it held that intermediaries must make a reasonable effort to block the sites but do not have to guarantee the outcome, in line with case law from the EU Court of Justice. The case files showed that all of the companies had carried out the orders at least in part.
"The requested penalty (...) therefore does not appear necessary or proportionate, given the need to strike a fair balance between the protection of the intellectual property rights of copyright and neighboring rights holders, and the freedom to conduct a business enjoyed by economic operators," the court wrote, as quoted in translation by L'Informé.
The underlying blocking orders remain in force until the end of the WTA season, currently set for 14 November, and beIN can still appeal. The outcome mirrors a ruling last month in Canal+'s case against Cloudflare, where daily penalties of 50,000 euros per site were refused on the basis that blocking through the content delivery network amounted to reasonable measures.
The DNS resolver Quad9 is next. According to the Swiss foundation, beIN is seeking 10,000 euros per domain per day, which adds up to 580,000 euros a day. Quad9's position differs from the others in one important respect: it is not blocking any of the domains at all. A decision is expected later this month.
Separately, the Paris Court of Appeal paused the VPN providers' own challenge to the blocking orders on 30 September, pending a ruling by France's Supreme Court, the Cour de cassation, on seven earlier decisions that upheld DNS blocking orders obtained by Canal+. The questions the appeals court says the cases share include who can be ordered to help stop piracy, whether the French blocking law complies with EU law, how infringement must be proven, and when blocking is proportionate.
The standard the court has now applied twice is reasonable effort without guaranteed outcome, and this newspaper wishes to record what it does to the evidence.
Cloudflare blocked three of four. The two VPN providers blocked six of eleven, which is 54.5 per cent. In both cases the proof that the effort was reasonable is the portion that failed, because a provider that had blocked everything would have demonstrated that blocking everything was available to it, and would thereby have shown its earlier effort to be something other than its best.
The streams still running are therefore not a defect in compliance. They are the compliance. They are the part of the record that establishes the fair balance between intellectual property rights and the freedom to conduct a business, and without them there would be nothing to balance.
Our analysts have attempted to locate the boundary. Seventy-five per cent is reasonable. Fifty-four and a half per cent is reasonable. Somewhere below that lies a figure the court has not yet named, and the only party in a position to find it is Quad9, which blocks none of the domains and is therefore running the purest form of the experiment available.
The Department of Unnecessary Research awaits the Quad9 decision with professional interest, since the 580,000 euros a day being sought from it is the price of a number nobody has yet established. In the meantime the position in France is settled, and it is this: the streams that are still working are not evidence that the order failed. They are the evidence that the effort was reasonable.