by Oscar Montezuma Panez, Google Policy Fellow

We all know that HTML links are the heart of the World Wide Web. What many don’t appreciate is that legal liability for linking varies greatly across countries. Given the importance of linking to the World Wide Web, whether websites can be held liable for copyright infringement for linking to material that is potentially copyright-infringing is a key issue. While US copyright law has a safe harbor for websites that provide location tools, the European framework for e-commerce does not have a specific limitation on liability for websites that provide links. As a result, courts in different EU member states have developed different standards for linking liability. In recent years, Spanish courts have issued several inconsistent rulings on whether websites containing links to potentially copyright-infringing material on peer-to-peer networks violate copyright owners’ exclusive right under Spanish law of making available copyrighted works. But now a recent decision of the influential Court of Appeals of Barcelona (Audiencia Provincial de Barcelona) in the case of Indice-web has clarified that merely providing a link is not "making available" content, and does not infringe copyright.

The case was brought by the Spanish collecting society Sociedad General de Autores y Editores (SGAE), which sued the owner of Indice-web, a website that provided, among other content, links to potentially copyright infringing content that could be downloaded with P2P software. The court at first instance found that Indice-web was not liable for copyright infringement because it did not host any copyright-infringing content and merely operated as an index of websites, providing only links. If viewers chose to click on the links and download particular content, the content would be transmitted by the third party web server and reproduced on the user’s computer, without any involvement of Indice-web. On that basis, the court denied the provisional measures requested by SGAE—an injunction ordering immediate cessation of making available links to musical works in SGAE's repertoire without permission; seizure of all the proceeds earned by the defendant in the marketing of Indice-web; and the suspension of the services provided by the upstream host of Indice-web.

The court noted that Indice-web merely acts as a guide for users by providing a link to works that could later be downloaded or exchanged through P2P programs. The court also noted that Spanish law does not forbid such guidance or orientation. In this case, the court held that "the linking system does not constitute distribution, nor reproduction nor public communication," under Spanish law.

SGAE appealed the ruling, arguing that the first court’s decision only analyzed the defendant’s conduct regarding provision of links to content accessible via P2P networks, but did not consider other possible bases for copyright infringement liability such as providing assistance for direct downloads and unauthorized streaming of copyrighted works hosted on a third party server. The Court of Appeals declined to rule on those questions because they had not been raised by SGAE at first instance. The court clarified that the main issue in question was whether placing a link pointing to content stored on a different server constituted impermissible reproduction, "making available," or communication to the public, under Spain’s copyright law.

The Court of Appeals reaffirmed the reasoning of the previous court and ruled that Indice-web did not violate copyright because it merely provides links and does not participate in hosting or the transmission of potentially copyright-infringing content. It found that: "Providing a link does not imply making available the protected work according to letter i) of article 20.2 of the Intellectual Property Act, and in such sense does not qualify as public communication. Making available the protected work occurs in the computers where the protected work is hosted and where it can be downloaded through P2P networks. In such sense, [it is those] users who make available the protected work." The court also found that Indice-web was not engaged in advertising, or any for profit activities.

Although this ruling is not directly binding outside Spain it is important because it comes from the influential Barcelona Court of Appeals and clarifies the previous inconsistent Spanish rulings. Given the fundamental importance of linking to the World Wide Web, we are heartened to see that the Barcelona Appeals Court and the court of first instance understand Internet architecture and the important policy issues this case raises. We hope other European courts will take a similarly thoughtful approach to these issues going forward.