On the Spanish court ruling that likens P2P to lending books

From time to time a Spanish court ruling gets some international attention. It seems that the latest example has been the decision issued by the Madrid Court of Appeals (Audiencia Provincial de Madrid) that likens P2P file sharing with the ancient practice of lending books (the CVCDGO case). The ruling was reported by Torrent Freak and echoed by many blogs as well as by many tweets. The Association of Research Libraries rightly tweeted that the decision is striking if the description is accurate. It also caught the attention of Professor Michael Geist.

Well, the comparison is striking indeed, though I wouldn’t say this is «a ruling that may be one of the most severe legal defeats for the entertainment industry in its fight against copyright infringers» as ComputerWorldUk put it. It seems like a good excuse for a post anyway, so I will comment a bit on the ruling and try to situate it within the Spanish case law context.

This is a criminal copyright case brought by the collective rights management society EGEDA, and several audiovisual companies against the website cvcdgo.com, which offered P2P download links to movies–without hosting the actual files. It must be observed that in Spain, as in many other European countries, a private party can file a criminal complaint. The Prosecutor (Ministerio Fiscal) must take part in the procedure, but it is not necessary that he agrees with the claimants for the case to go ahead.

The examining judge (Juez de Instrucción) dismissed the case on May 27, 2009, on the grounds that the activity of merely providing links to infringing files falls under the safe harbor of information location tools set forth in article 17 of the Spanish Law 34/2002 of 11 July, on Information Society Services and Electronic Commerce (LSSICE). This Law transposes the European E-Commerce Directive and provides for a safe harbor for linking—in addition to the safe harbors for mere conduit, caching and hosting laid down in the Directive. This dismissal was appealed by the claimants—an appeal not joined by the Prosecutor. The Court of Appeals handed down the decision at issue on May 11, 2010, affirming the dismissal of the case but on different grounds.

The main ground for the dismissal is that the mere provision of links doesn’t amount to a communication to the public, and thus doesn’t fall under article 270 of the Spanish Penal Code. This Article establishes that it is a criminal offense to reproduce, plagiarize, distribute or publicly communicate a copyrighted work, with lucrative intent and without the authorization of the rights holder. To provide a link is obviously not a reproduction of the work, or plagiarism or distribution. The only remaining possibility is that it may be considered communication to the public; otherwise the conduct clearly falls outside the provision and thus can’t create criminal liability.

The court found that merely providing links does not constitute communication to the public, which has been so far the conclusion held in almost all the criminal cases dealing with websites offering P2P download links. To be sure, this ruling is just one more in the progeny of the Sharemula case. In Sharemula, the case was dismissed by the examining judge on September 28, 2007, and the dismissal was affirmed by the Audiencia Provincial de Madrid on September 11, 2008. The CVCGDO court cites Sharemula and some other cases that form part of its progeny.

The court states that some other courts do consider that linking constitutes communication to the public. However this is not accurate. The rulings the court cites are not conclusive in this respect, as they don’t decide the actual issue but simply order the case to go ahead.

Only two exceptions can be found in the Spanish case law, both from lower courts—case infopsp.com and case simonfilms.tv. However, none of them really discuss the legal issues, since the accused parties agreed with the claimants to plead guilty for different reasons.

So what about the famous comparison to lending books? Well, this is obviously dicta and has nothing to do with the grounds upon with the case is dismissed. Sadly, it reflects lack of precision adding to some other imprecision present in the ruling. On the other hand, the statement clearly shows that the court is sympathetic with p2p filesharing.