On December 12, 2016, as expected, the Supreme Court confirmed in its decision that the managers of the Youkioske website committed an aggravated crime against intellectual property. This is one of the most prominent cases in recent Spanish case law on infringement of intellectual property rights through the Internet, so it is worth recapitulating and reaching conclusions.
As mentioned in this Blog, the Supreme Court had delayed confirming said judgment by means of its prior decision dated October 27, 2015, in which it had asked the Court of Appeals (“Audiencia Nacional”) to review certain terminological and factual issues to properly assess the case. On February 5, 2016, the Court of Appeals issued a second decision, which the website managers appealed again to the High Court.
What the Supreme Court intended with this review was to clarify whether, through the website, which allowed users to access news publications, magazines and books (via streaming) without the owners’ consent, acts of public communication covered by the criminal type provided for in articles 270 and 271 of the Criminal Code had been committed.
Regarding links to protected works, the Court of Justice of the European Union interpreted in the Svensson case, and more recently in the GS Media case, that to be acts of public communication, these links need to provide access to a "new" public, which did not exist, for example, when the owners of the rights to the linked works had previously authorized its free access to all internet users.
The High Court recognizes that at first it was unclear whether the public accessing the works available on Youkioske could also access these works made available by their right-holders elsewhere on the internet (for example, through their free digital editions). However, this review allows it to conclude that, since the linked works could only be obtained by purchasing the paper edition or by subscribing to their digital platform, the links on Youkioske implied acts of communication to a new audience. Said acts of communication allowed users to avoid the conditions of access and disclosure authorized by the right-holders.
This case is added to the list of cases related to links on websites that have recently been affected by new interpretative guidelines established by the Court of Justice of the European Union on this matter, as discussed here(Rojadirecta) and here. It also points out that new cases will continue to be added to this list as legal questions regarding links and, in general, computer networks, become clearer.