Spain Recognizes That Deep Linking To Infringing Content Is Not Infringing

from the a-good-ruling dept

While other countries are still going back and forth on whether or not just linking to infringing content should be seen as infringing as well, an appeals court in Spain has upheld a lower court ruling that merely linking to infringing content is not infringing itself. This makes a lot of sense, as putting up links to content controlled by others should never be seen as a crime, especially when the linking party might not have any idea whether or not the linked content is infringing, and when that content could potentially change. Either way, this is a good ruling for various torrent tracker sites, since all they are doing is linking to content, rather than hosting any themselves.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    NH, Sep 23rd, 2008 @ 7:34am

    While I agree overall with the point there are a few issues are there not? Regardless of the rights and wrongs of the current copyright system, there will be plenty of cases where sites are well aware that the content they are pointing to infringes copyright.... what then?

    Due to the nature of it all, there will be cases where its hard to prove but there will be plenty where it will be completely plain that the link is to something that does.

    The only parallel I can think of would be the real world where providing someone with the means to contact someone else to procure goods you knew to be stolen would be seen as failure to report a crime. Not sure is the US or Spain in this case has such a law but the UK does.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Sep 23rd, 2008 @ 7:38am

    Isn't this kind of like living off the avails of crime? Gosh officer...I had no idea.

    No wonder kids don't get the idea of social responsibility anymore...there is no such thing.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Sep 23rd, 2008 @ 7:39am


    failure to report a crime...better analogy.

    reply to this | link to this | view in thread ]

  4. identicon
    J.Locke, Sep 23rd, 2008 @ 7:43am

    I dunno . . .

    Discussing these issues today seems a bit like arguing about the color of the drapes, as the house burns down.

    reply to this | link to this | view in thread ]

  5. identicon
    Liam Potter, Sep 23rd, 2008 @ 8:02am

    Re: I dunno . . .

    this is a quote...saving it now.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Sep 23rd, 2008 @ 8:07am

    Having followed the numerous cases dealing with search engines that can point to what is undeniably infringing content, I am not aware of any court decision in the US that has held a company liable under copyright law merely because its search engine, even in the extreme case, is generally directed to pointing almost exclusively to infringing content available for file sharing where the content is not physically hosted on the company's servers.

    These cases have generally found liability based upon additional factors associated with other company actions beyond the mere existence of its search engine. For example, is the company responding in good faith to takedown notices? Is the company openly encouraging sharing of files it has notice comprise infringing material? Does the company act in some other overt manner that can reasonably be viewed as facilitating such sharing? Etc.

    Company liability is generally predicated upon the totality of facts as contained in the evidentiary record, and not just the fact that a search engine is involved. A relatively good example of some of the salient facts bearing upon this analysis can be found in the Grokster decision by a unanimous US Supreme Court.

    reply to this | link to this | view in thread ]

  7. identicon
    Jake, Sep 23rd, 2008 @ 8:08am


    I have to say I agree with this. The legal decision upon which much of post-Internet copyright law is based was extremely short-sighted, undoubtedly, but it's the law as it stands today and that is what we have to work within until such time as we can change it.
    I also have my doubts about the wisdom of giving platform providers complete legal immunity from the consequences of their services being used in the commission of an offence; it's not such a big deal for civil matters like file-sharing, but it sets a potentially dangerous precedent when it comes to honest-to-God felonies.

    reply to this | link to this | view in thread ]

  8. identicon
    Spanish user, Sep 23rd, 2008 @ 8:16am

    Some context on all this

    I woudl like to give some more contex on all this.

    One of the reasons why deep linking in Spain is not considered a crime is because downloading/offering of copywrited materials (movies, music...)is legal as long is not done for profit.

    This is a key point and this discussion. It doesn't matter what the law in US or UK says but in Spain you can fully pack your hardrives with copywritted materials and share it whit the rest of the country without commiting a crime.


    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, Sep 23rd, 2008 @ 8:41am


    "The only parallel I can think of would be the real world where providing someone with the means to contact someone else to procure goods you knew to be stolen would be seen as failure to report a crime."

    No I see it more as being stopped on the street by some one needing directions to a gas station. You give them exact directions and an hour later you hear that the store you gave directions to was robbed. It could have been the guy that stopped you for directions.

    reply to this | link to this | view in thread ]

  10. identicon
    NH, Sep 23rd, 2008 @ 9:21am

    I see your point Anonymous Coward but there will be occasions as mentioned above where people are perfectly aware that they are pointing to infringing content. If you genuinely had no idea then yes you are protected.

    One may choose not give directions to someone if they said "I need to rob X Petrol station can you give me directions."

    It is a murky area for sure but blanket protection is dangerous.

    I did not realise that about Spain though Spanish User but am intregued as to how it works. Does it really mean there is no concept of ownership of any copyright so long as the person sharing online etc... is not profiting.

    reply to this | link to this | view in thread ]

  11. identicon
    Enid of Enoughborough, Sep 23rd, 2008 @ 9:22am

    Re: Re:

    This seems more closely related to a phone book, such as the Yellow Pages. Is the phone book publisher held liable for printing the address and telephone number for a company that is hosting/selling/giving away copyrighted material, or doing anything else illegal, immoral or unethical? No, never, not once in history. What's different about this?

    reply to this | link to this | view in thread ]

  12. identicon
    Antoine Clarke, Sep 23rd, 2008 @ 9:28am

    cross border crime

    Another reason for supporting this ruling is borders. What if copyright law is different in two countries, so that the linker is in a country which has a 30 year copyright law and the site which infringes has 70?

    More likely still, what if what's really happening is a "copyright infringer" according to US law, but who is based in another country, where the alleged crime is not in fact recognized as such?

    For bloggers, the complication comes with the question of whether I'm bound by UK or US laws, if I sit at a computer in the UK but use a US-based blogging tool.

    This is where it would be nice if we kept concepts of crime to 1) there is a victim and 2) there is demonstrable intent. But the

    reply to this | link to this | view in thread ]

  13. identicon
    ChimpBush McHitlerBurton, Sep 23rd, 2008 @ 9:49am

    Ok, Enough Already

    This whole dialogue is getting stupid.

    When will you copyright whores get it straight?: You can't stop people from linking to content you don't like. Period.

    I can stand on the street all day and tell people that around the corner, there is a guy selling fake Rolex watches. As long as I don't know him, or share in the profit he's making (which is already a bad analogy, because last I checked, torrent uploaders aren't making a dime...), I have committed no crime, and can't be charged with anything. Just because this is happening on the InterWebs makes no difference.

    So, to put this in perspective, let's just turn the table a little bit, and hopefully you will see the error in your thinking:

    I have a new idea for the torrent tracking sites: Instead of marketing yourself as a site for end-users to find downloads that they want, change your marketing to a model which emphasizes helping *copyright owners* find infringing content, by way of torrent tracking. strikes me as a possibility.

    WAIT! Shouldn't the whistleblower be taken down because he's assisting end-users in finding infringing content? NO! He's helping copyright owners find "pirates" (I fucking hate that term, it's not piracy you fools)

    But aren't these two scenarios basically the same thing?

    Yes, but you were the one who was trying to stop it. NOW do you see how dumb you are?...No? Still think you have an argument? - well, I tried.


    reply to this | link to this | view in thread ]

  14. identicon
    BTR1701, Sep 23rd, 2008 @ 10:50am

    Re: Reporting

    > ...would be seen as failure to report a crime.

    Well, aside from some narrow exceptions, there isn't any duty to report a crime. Child abuse is one of the only exceptions to this. But, for example, if you witness someone steal a car, you're under no legal obligation to report it.

    reply to this | link to this | view in thread ]

  15. identicon
    johnny, Sep 23rd, 2008 @ 11:42am

    anyone remember the ....

    NYT article about a resident who was warning people not to smoke dope on his street... and then he was arrested by the police for interfering with police business.

    So I guess preventing a crime is also a crime!

    reply to this | link to this | view in thread ]

  16. identicon
    Motown, Sep 23rd, 2008 @ 11:48am

    Re: Ok, Enough Already

    This is great! To take your first analogy one step further:

    The bloke standing on the corner telling people there is a guy around the corner selling fake watches is approached by a Police Officer:

    "Thank goodness you came! I've been standing here warning people all day about the crook around the corner!"

    He'd only be committing a crime if he tried to stop the policeman from trying to apprehend the watch seller. One question though - would he be committing a crime if he tried to warn the seller that a policeman was on the way?

    reply to this | link to this | view in thread ]

  17. identicon
    johnny, Sep 23rd, 2008 @ 12:03pm

    Re: Re: Ok, Enough Already

    Only if he conspires with the seller ahead of time or acts in a way to further the enterprise.

    reply to this | link to this | view in thread ]

  18. identicon
    Ajax 4Hire, Sep 23rd, 2008 @ 12:53pm

    What about newspapers?

    If investigative news uncovers a crime, is it a crime to report the crime?

    What about deep linking to someone's web site that is criminal as a example of how spammers can successfully rob the general public?

    If TV Nightly news reports a problem with the city mayor and you repeat that story to a neighbor are you commiting a crime?
    What if you linked to a article in an email to your mom and she reads it; is your mom committing a crime.

    Spain educates the world.

    reply to this | link to this | view in thread ]

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