A Judgment issued by the Regional Court of Vizcaya on September 27th, 2011 has admitted the appeal filed against the Judgment issued by the Criminal Court in Baracaldo (Vizcaya) on February 11th, 2011 that we discussed in our last issue.  

The Judgment rendered by the Court of First Instance acquitted of a copyright offense against the defendants who ran a website where links appeared allowing downloads of content protected by copyright. The argument was that providing links to download pages is not a crime according to Section 17 of the Electronic Commerce Act provides that such behaviour does carry no liability if operators do not have knowledge about the fact that the links might damage Intellectual Property Rights.  

This regulation has been interpreted broadly when applied by the Criminal Courts, for instance, the in the Regional Court of Madrid as per its Judgment dated March 8th, 2011.  

However, the interpretation of the Court of Bilbao is stricter. It is based on the premise that the provision refers to an effective unawareness of the illegality of the content of links. For instance, in those cases of searching engines or in the case of web sites of links leading to other sites with xenophobic content that violates the honour of the person. Section 17 exempts them from liability if the operator has no actual knowledge that the link content is unlawful.  

Nevertheless, in this specific case, the Court considers that the defendants log into the file sharing site and extract the file link movie or music taking it out from a sharing site context to make it a direct download file elsewhere. That is, they did not run a p2p file sharing site, which is permitted, but an activity that allows downloading of content protected by Intellectual Property Act. In general terms, what is punished is the involvement in a direct activity of works’ indexing and classification, and not a mere intermediary actuation.  

Furthermore, the Judgment states that the fact that the defendants obtained indirect benefits through advertising on their website which depended on the number of hits posted on their website, determines the fact that the activity was geared to get a profit and, therefore, the defendants had a profit-making intention with such activity.