WEB DOWNLOADS: JUST INTERMEDIARIES?

So many times we have heard the people responsible for downloads of illegal contentclaim after being brought to justice: I’m not guilty of anything, I was just the intermediary, but I warned users that they could not use my website for hosting content which did not have the necessary authorisation ….It’s their fault, not mine! …

So if users were already warned of this fact … Why is the person liable for the illicit action the one who made available all this material under copyright law to users and not paid any money for it?

Argument for the Defence

In many cases, the defence argument for those responsible for these types of web page downloads is that their work is simply an intermediary one, consisting of facilitating links to other pages and not taking responsibility for the information provided in such links nor for the content within them.

They argue that they are not aware that the activity to which the user is being directed is unlawful or harms property or rights of others, since “it is impossible to review the thousands of links” and also “the activity of file sharing has not been considered unlawful by the courts, from the point of view of the user participating in file sharing.”

On the contrary, case law has accepted that it is not a question of whether the content is legal or illegal, focusing on the fact that the people responsible for these types of page downloads are performing an act of public communication.

In fact, it is understood that what these people responsible for performing the downloads do involves removing a link from a music file or film (to give a visual example) from the file sharing site, and then hosting this link in their server, thereby removing the context from the sharing site so as to convert it to a direct download somewhere else.

Technically, when the user clicks ‘download’, he accesses the relevant file sharing site, but only as a software procedure required to access the file. That means that the people responsible for these web downloads do not take the user to the sharing environment, but through the simple action of ‘clicking’ on ‘download’, they can get to the film or the corresponding music directly.

Conclusion

Therefore, those responsible for the download sites are not mere intermediaries, as they clearly carry out technical work and alter the nature of the site to which they give access, allowing direct download of its content outside the context of sharing.

This is direct action, and not intermediary work, through which the final result is access to the work in question.
Such action has to be considered an act of public communication for which under no circumstances has any payment of copyright been made and therefore users accessing it do not have authorization from the holders of this copyright.

Jordi Farré - SN Abogados