On September 16 2009 the Murcia Court of Appeal rendered a decision in a case involving an alleged crime against intellectual property (under Article 270 of the Criminal Code) in the creation and administration of the website www.elitedivx.com, which provided access to exchange of works programs protected by copyright on the Internet (ie, peer-to-peer (P2P) platforms).

The appeal court revoked the decision of Cartagena Criminal Court 4, which had ordered proceedings to be shelved on the grounds that the conduct of the defendants (ie, the creators and administrators of the website) did not amount to a criminal offence against intellectual property, although the court recognized that the conduct could be considered copyright infringement from a civil point of view.

The criminal court stated, among other things, that the defendants were mere intermediaries in the public communication of the copyrighted works and such intermediation cannot be considered a crime according to Law 34/2002, which regulates information society services and e-commerce (providing that service providers which transmit information provided by the recipient of the service or provide access to a communication network are absolved from responsibility for the information transmitted or linked thereto). It further held that the defendants were not acting with the aim of making a 'commercial profit' (as defined by State Prosecution Authority Circular 1/2006), as the profit was obtained not directly from the public communication of the protected works or from the provision of access to P2P platforms, but rather from advertising.

The appellants and private prosecutors(1) appealed the decision, arguing that a criminal offence against intellectual property had been committed and that investigations were pending.

The appeal court upheld the appeal, ordering the criminal proceedings to be reopened and the investigations to continue. It stated that "the discontinuance set forth turns out to be precipitated", being "premature in limiting the conduct of the defendants to the intermediation", and admitted the possibility that the defendants, apart from providing access to P2P platforms, had uploaded the works protected by copyright to their website and carried out direct public communication from that website.

Unlike the criminal court, the appeal court declared that the profit obtained by the defendants from the adverts on the website showed that there had been a commercial profit-making aim.

The appeal court gave no clear guidance on whether providing links to P2P systems with the aim of making a profit is a crime against intellectual property, stating only that "the conducts that are carried out through [P2P networks]" can be considered as a crime against intellectual property. The question is thus whether the conduct carried out by the defendants can be considered as having been carried out through P2P networks.

Decisions on the possible criminal nature of providing access to P2P platforms are contradictory. The September 30 2009 Alava Court of Appeal decision in the Infektor Case considered that such conduct can constitute a crime against intellectual property. Conversely, the September 11 2008 Madrid Court of Appeal decision in the Sharemula Case (referred to by the Murcia Court of Appeal in this case) declared that such conduct cannot be considered a criminal offence.

The decision is important because it expressly refers to the possible criminal nature of exchanging files through P2P platforms, stating in particular that such conduct implies reproduction and public communication (Article 270 of the Criminal Code) whenever that conduct causes detriment to a third party's rights (a feature of P2P exchanges, according to the appeal court) and has a profit-making aim.

The appeal court's considerations on the requirement for a profit-making aim, established in Article 270, are remarkable. The court considered this requirement to be fulfilled on account of the profit obtained by the defendants from the adverts on the website. This interpretation differs not only from that of the Cartagena Criminal Court, but also from other recent case law,(2) where profits were also obtained from adverts. In these cases it was established that there had been no profit-making aim because such benefits were not directly linked to the provision of access to P2P networks.

For further information on this topic please contact Ives Jadraque at Grau & Angulo by telephone (+34 93 202 34 56), fax (+34 93 240 53 83) or email ([email protected]).

Endnotes

(1) Entidad de Gestión de Derechos de los Productos Audiovisuales, Columbia Tristar Home Entertainment y Cía SRC, The Walt Disney Company Iberia, Twentieth Century Fox Video Hogar, SA, Manga Films, SL, Universal Pictures (Spain), SL and Paramount Home Entertainment (Spain), SL.

(2) Madrid Criminal Court 4, November 12 2008 and Alcoy Criminal Court 3, June 17 2009.