A Spanish court recently sentenced the administrators of two websites to one year of jail time and fines for linking to copyrighted works. The ruling came as a surprise, as case law had held so far that merely linking to infringing files is not a criminal offense under the Spanish Criminal Code (SCC). I’ll try to put the ruling in its context. I’ll refer to this case as Fenixp2p.
First, the ruling deals with the activity of running a website devoted to provide links to music or movie files. The site itself doesn’t host the files. Rather, they are located either in p2p networks – and thus ultimately in user’s hard disks – or in servers such as Megaupload or Rapidshare, which host a huge amount of copyrighted files. The same activity has been considered in many other criminal cases. Courts so far had consistently acquitted the accused parties, finding that the described activity doesn’t constitute a criminal offense. (To be more precise, there was an exception to this general trend, though it was a case where the accused agreed to plead guilty; hence the judge wasn’t properly briefed, and declared the existence of the crime without much analysis.)
In order to find a copyright crime, at least one of the following conducts must have taken place: reproduction, communication to the public, plagiarism or transformation of the copyrighted work (art. 270 SCC). In the absence of any of those conducts of direct infringement there is no criminal copyright offense.
In Fenixp2p the court of Appeals reversed the acquittal issued by the lower court, and held that the type of linking conduct carried out by the two websites was indeed a form of communication to the public. Although this contradicts almost all previous rulings by other courts, there might be some room to read the Spanish Copyright Act this way, particularly because of the general clause of art. 20 of the Copyright Act, which defines “communication to the public” in an extremely broad fashion. Unfortunately the court didn’t elaborate much on this point.
The ruling notes that both accused acknowledged having recorded the audio of Spanish-dubbed movies exhibited in theaters in Spain. While the court clearly states that it will not take this element into account due to the lack of further evidences, the implication is highly relevant. Though never demonstrated, it is not unlikely that the goal of recording the Spanish audio was to insert it in an original movie file previously downloaded from the Internet, then upload the result to sites such as Megaupload, and finally provide the link to that file on their websites.
Besides the direct infringement (in this case, according to the court, the communication to the public) the criminal offense requires lucrative intent. It was beyond discussion that the accused had got money thanks to the ads placed on their webs.
Though it is the first one, a ruling like this one was not unthinkable. However, several parts of the court’s argument seem flawed to me. It appears that the court doesn’t really know how the technology works or what a p2p network is. More importantly, it misses the point when it analyses whether the accused administrators might be protected under the so-called linking safe harbor. The court held it doesn’t apply but the arguments are unpersuasive. Moreover, the court reached the astonishing conclusion that the activity falls under the so-called caching safe harbor, which is simply untenable.
— The full text of the ruling in Spanish (PDF)