Last week, news that had already been published in traditional media spread through social media: hundreds of Basque internauts received extrajudicial orders for sharing the movie "Dallas Buyers Club" on the internet without authorization. Each infringement is being fined €475. Users’ identities would have been facilitated by the provider of the internet access, Euskaltel, which would have been forced to do so by a Commercial Court of Bilbao following a request from the film’s rights holder. This situation, known and common in our context, was unprecedented in Spain, especially because of the legal complexity and the uncertainties surrounding the issue.
We will start with the certainties: internet users who make songs, books, films and TV series available to other users on the internet infringe intellectual property rights. This happens frequently on the so-called p2p networks, computer programs that, once installed on users computers, allow them to share works protected by intellectual property rights directly with each other and with their systems.
The absence of judicial response in Spain against these acts was not because there was any doubt of their illegality, but because of the impossibility of pursuing them. Until now, a holder of intellectual property rights would know the IP addresses of users illegally sharing protected works on the internet, and would also know the conduct was illegal, but that’s where the trail ended. There was no way of knowing or investigating the identity of the user carrying out that practice.
Since 2007, the Data Retention Act only allowed authorities, including judicial authorities, to require internet access providers to identify owners of specific IP during the investigation of serious crimes. Beyond contradictory jurisprudential interpretation of the latter concept, the debate was ineffective in the case of infringement of intellectual property rights on the internet, at least before the last reform of the Spanish Criminal Code: no interpretation supported that the users who carried out these practices were carrying out a crime against intellectual property, only a civil offence
Intellectual property rights holders reached a dead end: they could demonstrate that a user who was surfing with a particular IP address was civilly infringing their rights, but they had no way, or legal way, to identity them. The Court of Justice of the European Union endorsed this option of the Spanish legislature in its well-known judgment of January 29, 2008, in the Promusicae v. Telefónica case, but did not rule out the possibility of opting for a different regulation.
In this context, Act 21/2014, which modified the material and procedural aspects of the Intellectual Property Act and the Law on Civil Procedure, changed the scenario. In one of the reforms introduced, it incorporated a new preliminary diligence so that, in civil matters, the holders of intellectual property rights obtained certain decisive information to initiate judicial proceedings. In particular, and since then, Article 256.1.11º of the Civil Procedure Law allows the owners to obtain form the Internet services providers the «identification of a user of their services [...] on which there are reasonable indications that it is making available or disseminating, directly or indirectly, contents, work or services subject to that right ... by means of acts that cannot be considered as being carried out by mere final consumers in good faith and without the aim of obtaining economic or commercial benefits [...]».
This returns us to the beginning of the story. Even without the resolution issued by the Commercial Court of Bilbao that has given rise to this piece of news, it seems evident that the action that we have been able to take place thanks to this new provision. Notwithstanding the procedural and material difficulties that will surely face this case, it highlights the importance of Act 21/2014 in this context and opens a door for titleholders to (at least) consider a new scenario in Spain: to pursue Spanish users for intellectual property infringements committed online.