Thoughts on the “Youkioske case”


On November 12, 2016, the Supreme Court issued a ruling with the expected guilty verdict for those behind the Youkioske website for an aggravated offense against intellectual property. This has been one of the most significant cases in recent times in Spanish case law in relation to the infringement via internet of intellectual property rights, so it is worthwhile reviewing it and drawing conclusions.

Confirmation of the ruling had been delayed because, as has been mentioned in this blog, in its ruling of October 27, 2015, the Supreme Court requested the Court of Appeals to review terminological and factual matters in its previous ruling to adequately evaluate the case. On February 5, 2016, the Court of Appeals issued a second ruling that the parties found against appealed to the Supreme Court.

With the mentioned review, the Supreme Court intended to clarify whether by means of the website in question—enabling users to access news publications, magazines and books (via streaming) without the consent of their owners—, non-consensual acts of public communication were to have taken place that are included in the type of crime envisaged in arts. 270 and 271 of the Criminal Code.

We must remember that regarding links to protected works, the EU Court of Justice has interpreted, in the Svensson case, and recently in the GS Media case, that, for their inclusion to be considered an act of communication to the public, they must be directed to a “new” public, which would not be the case when the holders of the rights to the work being linked to had authorized free access to all internet users.

The Supreme Court recognizes that it was not initially clear whether the public gaining access to the works available on Youkioske could equally gain access to such works by other means facilitated by their owners on internet, e.g., through free digital editions. However, the mentioned review allows it to conclude that—as the works linked to could only be obtained by purchasing the paper edition or by paid subscription to the digital publication—the links represented communication actions to a new public allowing users to circumvent the access-and-publication conditions authorized by the owners.

This case adds to the list of cases in relation to websites offering links that have recently been affected by new interpretations by the EU Court of Justice on the matter, as we have been commenting here (Rojadirecta) and here. All the signs are that new cases will continue to be added, as the legal doubts regarding these links and IT networks in general are increasingly being clarified.