First time a judge in the country has clearly stated that "P2P itself does not violate any rights," says attorney Carlos Almeida-Sanchez.
Spain, though part of Europe, seems to be worlds apart as the only country that has realized the difference between piracy and illegal file-sharing.
For Raul N. Orejuda Garcia, Magistrate Court judge of Mercantile number 7, ruled recently that "P2P networks, as a mere transmission of data between Internet users, does not violate, in principle, any right protected by the Intellectual Property Law."
In particular, he said that P2P transfers are not one of the "clear and specific behaviors that the law forbids, in particular reproduction, distribution and public communication without authorization."
The case was part of a suit brought by a coalition of the country’s entertainment industry against eD2K website elrincondejesus, the owner of which rightly pointed out that it only provided links to content much like Google or any of the other search engines out there.
“As you know Elrincondejesus.com never had advertising (or has now)," he said. "I’m innocent and the only thing that I have done is provided links to other sites, like thousands of search engines in the world.”
The case is certainly a departure from the ruling against Swedish BitTorrent tracker site the Pirate Bay which made the same argument, but was convicted for the facilitation of copyright infringement nonetheless.
“Adding a work or video recording to eMule, that has previously been converted to a computer file, compatible with that program, is not an act of reproduction,” reads the ruling. "Copying is not a profitable use, or collective, as these two terms refer to the subsequent use made of the work once downloaded, after the copy. "
The court also says that illegal distribution requires something "tangible" to exist, like a website, and on which the actual sharing must occur. This doesn’t happen in P2P where the transfer of data occurs between individuals.
It recognizes the possibility that unauthorized public communication, or distribution, of copyrighted material may have occurred, but that it’s difficult to prove being that it "may well be possible that the file-sharing was with one person."
The case echoes a similar ruling by Spanish Judge Paz Aldecoa back in November of 2006 who found that since there was "“no talk of money or any other compensation beyond the sharing of material available among various users" then P2P didn’t therefore violate the tenets of the country’s copyright laws since it was only about obtaining "copies for private use" which is legal.
It may also bolster concerns by the Congressional Anti-Piracy Caucus which placed Spain on its “2009 International Piracy Watch List." It complained that “P2P piracy is widely perceived as an acceptable cultural phenomenon, and the situation is exacerbated by a government policy that has essentially decriminalized illicit P2P file-sharing.”
Is making a distinction between those who download for profit and those who don’t really decriminalization? We always take into account the motives behind crimes and punish accordingly. That’s why we have various degrees of murder, theft, and even assault vis a vis "hate crimes."
Why should P2P be any different?