February 24 2014 Appeal court orders ISP to suspend internet access due to copyright infringement Grau & Angulo | Intellectual Property - Spain Intellectual Property FactsFirst-instance decisionAppeal decisionOn December 18 2013 the Barcelona Court of Appeal issued a landmark judgment which reversed the first-instance decision and upheld a suit filed on behalf of several music record producers operating in Spain against an internet service provider (ISP) that provided internet access to an infringer.FactsThe case arose from an investigation conducted by a Spanish association for the defence of the music producers' rights into a user of peer-to-peer (P2P) file-sharing software. The investigation revealed that this user had more than 5,000 audio files stored in a folder in a hard disk that were made available for download by other users of the P2P software. An expert report also revealed that the sample audio files analysed were protected by the copyrights of some of the music producers, which took action alongside the Spanish association. The plaintiffs identified the user's nickname in the P2P software and the Internet Protocol address associated with the user, which revealed the ISP that was providing the user with Internet access.However, it was impossible for the plaintiffs to discover the actual identity of the user, since Spanish ISPs are legally bound to report their clients' identities only upon an authority's request approved by a judge and in relation to the prosecution of serious criminal offences. Therefore, it was not possible for the plaintiffs to take direct action against the user. Instead, the plaintiffs took action only and directly against the ISP, requesting the court to order it to stop providing internet access to the infringing user.The action was filed on the grounds of provisions introduced into the IP Act in 2006 to implement the EU Copyright Directive (2001/29/EC). In particular, these allow for a lawsuit to be filed directly against an intermediary whose services are used by a third party to commit the infringement, to obtain an injunction ordering suspension of the service - even if the intermediary's activity does not itself constitute an infringement.First-instance decisionIn a July 11 2012 ruling the court of first instance rejected the claim, finding that the user had committed no infringement. In its opinion, the non-profit-oriented sharing of these files between individuals could not in itself be deemed copyright infringement. It also questioned the standing of the ISP to be sued directly.The plaintiffs appealed.Appeal decisionThe Barcelona Court of Appeal rejected the lower court's conclusions. First, it confirmed that the relevant provisions of the IP Act confer standing on intermediaries to be sued where third parties use their services to infringe copyright.The court further found that the user had indeed infringed the plaintiffs' copyright. In particular, citing its own case law, it declared that storing audio files in a folder shared through P2P software constituted an act of reproduction not covered by the private use exemption under Spanish law. In addition, it involved making such files available to the public (ie, other users of the P2P software) for download to their own computers. Thus, such activity constituted an infringement of the producers' right to authorise the reproduction and communication to the public of the protected phonograms.Consequently, the Barcelona Court of Appeal admitted the plaintiffs' requests, finding that the user had committed copyright infringement and ordering the ISP to immediately and permanently suspend the Internet access service provided to the client behind the user in question.For further information on this topic please contact Pablo Marti at Grau & Angulo by telephone (+34 93 202 34 56), fax (+34 93 240 53 83) or email ([email protected]).