They either have permission to host them (this is the case with a fair number of things on HotU, for example) or the ESA hasn't noticed them yet.
@efthimios: Not that I'm aware of, Titan was referring to the ESA communication we had several months ago - as far as we know there aren't any ESA titles on the site for download any more, though this was the case beforehand and it turned out we'd been hosting some without realising they were ESA protected.
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