This article deals with the responsibility of the information society service providers and the concept of new public in relation to intellectual property infringements.
The recent judgement in the Youkioske case has created expectations about how it will affect the existing case law. In the majority of previous cases, the accused was acquitted.
A Madrid Court (Juzgado de lo penal No. 27) issued the first statement concerning a links page after the Youkioske judgment and it is in line with the jurisprudence mentioned, absolving the owner of the website nuncamas.org.
Thus, citing numerous previous precedents, the Court states that considering links as public communication, “is a forced and expansive interpretation of the legal concept of public communication as defined by the Copyright Act, analogy in malam partem not permitted in criminal law … In those resolutions it has been established that Internet links do not constitute public communication in Spain… “
All the above are applied, “Regardless of whether these links are just hypertext, from P2P programs like Emule or Torrent, to streaming, or even to download pages, like Rapidshare or Megaupload. Links are just links. The links do not make a work available to the public, but merely report that the work is available in other people’s Internet servers.”
Finally, the Court concludes that the objective and subjective elements of art. 270 of the CP were not met and therefore it acquitted the defendant of the offence.
The full statement is available here