In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. Therefore, without prejudice to any other sanctions and remedies available, rightholders should have the possibility of applying for an injunction against an intermediary who carries a third party’s infringement of a protected work or other subject-matter in a network.
Spain authorized injunctions against intermediaries in article 8(3) of its Copyright Act.
In the Barcelona case Promusicae, an association of Spanish music producers, learned that someone was using the Direct Connect P2P network to make available in a shared folder 5,000 music files including copyrighted music. In Spain, ISPs are not obligated to identify their users for purposes of civil lawsuits, so the only identification of the user available to the claimants was a nickname and IP address.
Without identifying the primary infringer, the copyright holders sued the ISP, R Cable y Telecomunicaciones Galicia. The appellate court found that there was infringement and that the copyright holders were entitled to an injunction against the ISP that was providing internet access to the infringer, enabling the infringement. The injunction required the ISP to permanently stop providing internet access to the infringing user, stopping the infringement.
This was the first ruling of its kind in Spain, but analogous rights against intermediaries are available in the U.S. and EU countries. Conkle, Kremer & Engel assists its clients to protect and enforce their IP rights in copyrights, trademarks and patents worldwide.