SPANISH SUPREME COURT (FIRST CHAMBERS), DECISION OF 3 APRIL 2012, 172/2012, PEDRAGOSA V. GOOGLE SPAIN, S.L.
The Spanish Supreme Court makes an unprecedented interpretation of copyright limits, recognizing that certain uses of protected content – like those made by the search engine www.google.es – are innocuous uses which do not infringe copyright.1
On 26 September 2006, Mr. A. Pedragosa, the owner of the gaming and betting web site www.megakini.com (Megakini), sued Google Spain SL for copyright infringement. Mr. Pedragosa alleged that both the snippet2 that was displayed when Megakini appeared amongst the www.google.es search results, and the Megakini cache copy, which could also be accessed in such results, infringed his copyrights.
On 30 March 2007, the court of first instance (Barcelona Mercantile Court nº 5) set aside Mr. Pedragosa’s complaint in integrum and refuted that any copyright infringement existed. It concluded that Google Spain was carrying out a temporary act of reproduction which was transient and an integral part of a technological process (Article 31 CA) and that Article 15 (i.e. exception of responsibility of the suppliers of proxy catching) and Article 17 (i.e. exception of responsibility of the suppliers of links and search engines) of the Information Society Services and E-commerce Act (ISSA) were also applicable.
Mr. Pedragosa lodged an appeal against this decision and, on 17 September 2008, the Barcelona Provincial Court (Section 15), delivered a judgment confirming the decision handed down by the court of first instance.
The Provincial Court found that it was not clear that the reproduction of contents in Google’s snippet or cache service were transient and form an integral and essential part of a technological process. It also concluded that Article 15 and Article 17 ISSA were not applicable to the case at issue.
However, the Provincial Court found that the search engine activities did not infringe copyright. The court reached that conclusion after interpreting Article 40bis CA (i.e. the "threestep test") in a positive sense and affirming that copyrights are not absolute rights. Based on criteria similar to those governing the application of the doctrine of fair use, the Provincial Court found that Google Spain’s activities were innocuous and do not fall within the scope of protection of the copyright because: (a) Google Spain’s use is consistent with the exploitation of the web site made by Mr. Pedragosa; (b) Megakini is a website available without restriction; (c) the information displayed in the snippets is extremely limited compared to the total content of the web site and, finally, and (d) Google Spain’s activity does not reduce Megakini’s value, but in fact benefits the exploitation thereof as a result of facilitating Internet users’ access thereto.
Mr. Pedragosa lodged an appeal against the Provincial Court judgment and the Spanish Supreme Court delivered the judgment 172/2012. The judgment confirmed that the Google search engine did not infringe Mr. Pedragosa’s copyright, based on the following innovative arguments:
- Contrary to Mr. Pedragosa's statements in his appeal, when referring to the doctrine of fair use, the Provincial Court did not apply North American law. In fact, in the Spanish Supreme Court’s opinion, the Provincial Court judgment merely interpreted Article 40bis CA from the point of view of the Spanish-law principle of ius usus inocui (right to the innocuous use of a third party’s property) which is consequence of Article 32.2 of the Spanish Constitution; as well as the principle of good faith which governs the exercise of rights and the prohibition of the abusive or antisocial exercise of the rights established in sections 1 and 2 of Article 7 of the Spanish Civil Code, respectively;
- Mr. Pedragosa’s claim should be considered as prohibited on the grounds that it is an abuse of a right or and antisocial exercise thereof prohibited by Article 7.2 of the Spanish Civil Code; and
- Finally, the Spanish Supreme Court finds that the closed system of exceptions to copyright contained in CA cannot be required to provide all of the exceptions, including the most obvious ones. Thus, it cannot be denied that a case is an exception simply because it is not expressly regulated as such. The interpretation of CA cannot be separated from its purpose of protecting copyright, which means that such interpretation cannot favor arbitrary claims brought to damage a third party without any personal gain, like Mr. Pedragosa’s claims.