Spanish court takes firm pro-copyright steps

Spanish courts have had a tradition of ruling that sites only linking to content that infringes copyright are not illegal, as long as these sites do not make direct profits based on their services.

This trend now seems to be reversed by an Appellate Court that has ordered criminal proceedings against the site elitedivx.com to be reopened.

The purpose of the Appellate Court is to provide lower courts with parameters that act as an interpretive framework for lower courts. The current such framework used by courts is based on the Attorney General’s instructions that P2P file sharing be decriminalised. The Appellate ruling has questioned these instructions and has requested that they be revised.

The parameters that the Appellate Court has now set, contradict earlier rulings by lower courts in which file-sharing sites were acquitted. The Court ruled that file-sharing is collective use and therefore is not protected by the home copy exception. As unauthorised collective use is a violation of the Intellectual Property Law, the Criminal Code does apply. Furthermore, the ruling stated the Criminal Code applies in principle as P2P linking sites enable unauthorised access to protected content.

The Attorney General also stated that in order for P2P sites to be considered unlawful, a commercial basis for exploitation of these sites needed to be proven. Earlier, only income made from file transactions were counted. The Appellate ruling also stipulates that indirect income, such as advertisement income needs to be taken into consideration.