Cross posted from ISPLiability blog
In a recent ruling issued by the 15th Section of the Barcelona Court of Appeals – a Section specializing on IP – the Spanish ISP R Cable y Telecomunicaciones Galicia has been ordered to suspend, immediately and for good, the Internet connection of a user who engaged in copyright infringing file sharing. The text of the ruling (in Spanish) is available here (PDF). This is the first ruling of this kind in Spain.
The action was brought by Promusicae, an association of Spanish music producers, along with the main music labels operating in Spain. Aided by DtecNet, an anti-piracy firm, Promusicae learned of an internet user who was making available more than five thousand music files in his hard drive shared folder, using the P2P network Direct Connect. The investigative firm actually downloaded three files which corresponded to copyrighted songs owned by the plaintiffs. The user was identified by his nickname and IP address only. It was not possible to find out the user’s real identity as ISPs in Spain are not obligedto reveal the identity of their users for purposes of civil lawsuits.
Not knowing the identity of the file sharer, the plaintiffs brought the case directly and exclusively against the ISP, asking for an injunction under articles 138 and 139.1.h) of the Spanish Copyright Act which allow right holders to seek injunctions against intermediaries whose services are used by a third party to infringe copyright. The requested injunction consisted of suspending the provision of internet access to the infringer. The possibility of asking for injunctions against intermediaries is contemplated in art. 8(3) and Recital 59 of the EU Copyright Directive, though the specific modalities of such injunctions are left to Member States’ national law.
Strikingly enough, the ISP chose not to answer the complaint and didn’t intervene at all in the lawsuit.
The court of first instance dismissed the claim, holding that the user’s conduct was not infringing. The Court of Appeals reversed and held that the user’s acts were indeed infringing as they constituted unauthorized acts of reproduction and making available to the public. It held therefore that plaintiffs were entitled to the sought injunction.
Some difficult questions arise from this case – I will highlight just a few.
First, the user was not a party in the proceedings, as the lawsuit was filed only against the ISP. This poses the question of whether the infringement could be found without summoning the allegedly infringer – though it is of course unlikely that the user could have successfully invoked a defense against the finding of infringement.
Second, articles 138 and 139.1.h) of the Spanish Copyright Act require the injunction to be objective, proportionate and non-discriminatory. The court, however, did not assess at all whether such a radical measure satisfied the required proportionality.
Third, and closely linked to the question of proportion, an IP address does not necessarily identify a single individual as it could have been shared by different people.
Finally, the real effect of the injunction is rather dubious, as the infringer can easily shift to a different access provider.
The author of this blog post, Miquel Peguera, is a Professor of Law at Universitat Oberta de Catalunya in Barcelona. He can be reached at mpeguera at uoc.edu.