While the ECJ decides on the questions referred to from Sweden and Germany regarding clickable links to works, Cases C-466/12 (Svensson), C-279/13 (More Entertainment) and C-348/13 (BestWater International), the Spanish courts start presenting a consolidated position that considers the clickable link as an act of communication to the public.
Last June, a Criminal Court of Valencia sentenced the webmaster of www.divxonline.info, to one year, seven months and fifteen days in prison, and to pay a fine and the compensation for damages caused to the rights holders, for providing links to content protected by copyright without the proper authorization. Now, a Criminal Court of Castellón reaches the same conclusion with respect to the webmaster of www.bajatetodo.es, a website which provided a direct link directory to p2p networks shared by users, to download music, films, TV series and software without the rights holders’ authorization.
This sentence, echoes the previous decision of the Court of Valencia, and understands that what is to be evaluated is not the illegality or not of the content linked, but whether the linking activity itself represents an act of communication to the public, although the webmaster did not download the content on its server, but merely reviewing contents that were on networks used for file sharing as Emule or Bit-Torrent, performing an intermediary role.
Certainly the wording of both sentences is somewhat unclear and incomplete. But what is worthy of criticism in the last judgment is that returns to the criticized judgment of the Provincial Court of Bilbao on fenixp2p.com case, and does not apply the liability of the links service providers, but the liability for service providers who make a temporary copy of the data requested by users, when the Court of Valencia already made clear that it was not applicable to link websites.
Anyway, it is clear that the Judge understands that providing links is an act of communication to the public, because it allows users to access works protected by copyright, and therefore considers bajatetodo.es’ activity as a continuing offense against copyright, and sentenced its webmaster to spend eighteen months in prison, to pay a compensation of EUR 21,116.70 and to a disqualification from the exercise of any activity related to the creation and management of web pages for three years.
This recent judgment confirms the change of approach that the Spanish Criminal Courts have held to date, in considering that providing links to works is an act of communication to the public, despite the fact that the files are not hosted on the website servers, in line with the proposed Spanish Criminal Code reform that considers the offering of classified lists of links to works and other contents as a copyright crime even if those have been previously provided by the users.