As discussed a few months ago in previous entries of this blog, the popular website rojadirecta links, through which any user could access sports broadcasts payment without charge, has now for some time dipped in a judicial process initiated by Mediapro and GolTV, as legitimate owners of the media rights of the parties the League and other competitions national football available from that site.
On 22 November, the Commercial Court No. 2 of A Coruña has issued a judgment by which it has jointly condemned the sole shareholder and the company that owns and manages rojadirecta, Puerto 80 Projects, SLU for infringing intellectual property rights of Mediapro and GolTV. In particular, the court convicted the defendants to cease permanently and immediately on the illegal exploitation of the shares held by the plaintiffs audiovisual recordings and, in particular, in facilitating links through any website that allow viewing -in direct or diferido- of football produced or issued by the applicants.
The sentence, which is not yet final, sets an important precedent in our legal system, to the extent that first applied the considerations made recently by the Court of Justice of the European Union ( "CJEU"), in the case GSMedia ( C-160/15), where the ECJ considered that the provision of links to infringing content of intellectual property rights could be considered a breach of these, as discussed a few weeks ago on this blog .
In this regard, the Court considers, based on the case GS Media, the activity of rojadirecta constitutes an act of communication to a "new" public (requirement it that the ECJ configured as necessary in the case GS Media) to the extent that: (i) rojadirecta system allows web users to circumvent the restrictive measures taken (to limit access to subscribers) on the web page that is the protected work and that-not Rojadirecta- the intervention could not have access; and (ii) rojadirecta knew or could reasonably know the unlawfulness of the publication of such works on the Internet.
Moreover, the Court considers that the exemption from liability under art can not be applied. 16 of Law 34/2002, Services Information Society and Electronic Commerce , insofar as it considers proven that rojadirecta is not a mere Hoster content, but acts as an editor, performing an active role knowledge and control links and other activities selection and planning of contents, and also does not offer technological means for third parties to upload links.
Therefore, the Court concludes that deliberate update rojadirecta constitutes an act of public communication of audiovisual recordings without consent, which infringes the intellectual property rights of the applicants, without entering to value the existence of violations of unfair competition ( subsidiary motion that the plaintiffs had made).