Telecino V. Youtube Telecino V

Telecino v. YouTube Telecino v. YouTube COMMERCIAL COURT NO. 7 MADRID, SPAIN JUDGMENT NO. 289 /2010, 23 July 2008 Proceedings: ORDINARY PROCEEDINGS 150 /2008 SECTION: Concerning OTHER MATTERS Of Mr./Ms. GESTEVISION TELECINCO SA, TELECINCO CINEMA SAU Versus Mr./Ms. YOUTUBE LLC I. FACTS being set for the trial at which the evidence admitted would be taken. ONE. This Court was assigned a claim in ordinary proceedings concerning the violation of intellec- FOUR.- The trial was held on the date set and the �� parties appearing attended. Upon commencement ��- the evidence was taken in order, with the result half of GESTEVISION TELECINCO S.A. and TELECINCO shown in the record of the proceedings. The Judge CINEMA S.A.U., against YOUTUBE LLC, with Court ordered an adjournment of the hearing to be resu- Procedural Representative Mr. Ramón Rodríguez med on April 9, 2010, at which the parties were gi- Nogueira, in which, after stating the facts and le- ven the opportunity to verbally state their closing gal grounds appearing therein, it requested that a arguments, which they did in the manner documen- judgment be delivered in accordance with its peti- ted in the record of the proceedings, after which tions, with an express order for costs against the the proceedings were concluded for the delivery of defendant. judgment. TWO.- The claim having been admitted for consi- FIVE.- In the hearing of these proceedings the sta- deration, it was decided to summon the defendants, tutory requirements have been observed. who within the statutory period duly appeared and presented a defense opposing the petitions in the II. LEGAL GROUNDS claim in accordance with the facts and legal grounds stated in its written submission. ONE.- Given the peculiar nature of the subject mat- THREE.- It was decided to call the parties to the pre- ter of the dispute, it is advisable to systematically liminary hearing, which was held on the day set. At �� the above-mentioned hearing, after trying to reach of subjects which, in the development of their ar- �� guments, unify without homogenizing them, both �� factually and on the legal grounds that make up the that could hinder the continuance of the procee- core of the dispute. dings having been resolved, and all other measures envisaged by law having been carried out, the facts The plaintiff, formed by two companies of the Te- on which a dispute exists were established and the ��- parties were granted the possibility to propose evi- olation of intellectual property rights against the dence: the plaintiff proposed the examination of the company Youtube LLC on the grounds that the trans- defendant, public documents, private documents, mission through the defendant’s website of various experts’ opinion, and judicial inspection and testi- audiovisual recordings owned by the plaintiff cons- mony; whereas the defendant proposed documen- titutes a violation of the intellectual property rights tary evidence, further documentary evidence, wit- of Telecinco, which has caused it a huge loss and da- nesses’ testimony and expert evidence, a date then ��- tablished in a subsequent procedure. 1 185 2010 COMMERCIAL COURT NO. 7 MADRID, SPAIN The defendant’s opposition lies on a harmonized pose of violating the intellectual property rights of group of exceptions that concern both the nature third parties who have not granted their consent to of the activity carried on and the legislation and case the transmission of the recordings. law applicable, and which directly refer us to the �� The plaintiff highlights certain peculiar features which, in its opinion, would allow YouTube to be �� activity carried on by the defendant in relation to the them below. recordings transmitted, and, in particular, whether it is limited to providing intermediary services for It is claimed in the statement of claim that YouTube the users of its website or whether it provides and commercially exploits the videos for its own bene- creates content, in relation to which it must be held ��- liable according to the general terms of the intellec- dant would not need any license from rights holders tual property law. for the operation of the web site. The request for a license included in the so-called Terms of Use alle- �� gedly proves, it claims, that the defendant does not the defendant’s liability as a mere information ser- merely provide intermediary services. vice provider in relation to the content circulated on its platform by third parties. However, the truth is that the request for a license from the users who upload content is not incompatible The last of the blocks of controversial arguments with the existence of an intermediary service that ad- concerns the damages claimed by the plaintiff. Due mits several variants; for example, the so-called hos- to its nature, this is subject to the analysis of the pre- ting Web 2.0 – which, unlike pure hosting, has as its ceding issues. purpose the upload by the participating users of mate- rials for circulation and the sharing of them with other TWO.- YOUTUBE’S ACTIVITY. PROVISION OF INTER- users – is precisely the service provided by YouTube MEDIARY SERVICES VS. PROVISION OF CONTENT. and is a situation where the service provider is often a licensee of the user. Given the focus of the litigation, the nature of the defendant’s activity constitutes one of the core is- The second of the characteristic features that al- sues on which the proceedings depend. This is be- legedly proves the plaintiff’s theory is that the de- cause both the group of obligations and rights and fendant performs what it calls “editorial work” in a the liability system differ completely depending process of selection and monitoring of the content on whether we accept the plaintiff’s theory, which displayed on the webpage. This allegedly happens claims that despite appearances, the defendant’s with the so-called “featured videos,” which appear web page does not merely serve as a platform so that in a special section and are chosen by YouTube’s em- third parties may circulate its content, but rather ployees. This is also allegedly proven by the super- YouTube is directly or indirectly involved in crea- vision and discrimination of certain videos which, ting it; or on the contrary, following the defendant’s without being unlawful, are incompatible with the arguments, we consider its activity to be limited to editorial policy advocated by the defendant. what the Information Society Services Law calls intermediary services. Regardless of the legal scope of this allegation, the fact is that the evidence produced does not prove, In order to analyze such a substantial issue, we will even to a minimum extent, the theory put forward follow the scheme as a line of argument prepared in the claim. by the plaintiff in its claim. We will do so for syste- matic reasons, because precisely the argument con- As has been stated by the witness Victoria Grand at cerning the elements or parameters that, according the hearing, it is physically impossible to supervise to the plaintiff, distort the nature of YouTube’s ac- all the videos made available to the users because, at tivity as a mere provider of services will allow us to present, there are over 500 million videos. The con- investigate the essence of that activity and reach a �� - Tube can remove it. According to the theory put forward in the claim, YouTube holds itself out as a mere intermediary ser- Nor is any editorial work performed when certain vi- vice provider, when in reality it acts as a content pro- deos are selected for the “featured videos” section. vider. For this purpose, it uses a language with com- �� parameters of a more or less objective nature, such �� as the popularity of the video among users. In any work by technical and automatic presentation of the event, the selection of certain videos according to selection processes, etc. ... and all of this for the pur- �� 1 186 2010 Telecino v. YouTube not involve any editorial work of creation or provi- �� sion of content. the procedures that the defendant has installed for �� Nor does the access to the videos made available by the defendant to its users through a webpage desig- Rights holders who are considered prejudiced by the ned by YouTube and distinguished by its trademark broadcast of any recording can request the remo- seem to contradict the nature of the provision of in- val of unlawful content by identifying the complete termediary services. URL of the reproduction page, together with an ex- ��-

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