For some time now Spanish judges have consistently ruled in favor of file-sharers, finding over and over that noncommercial P2P – file-sharing without motivation of profit – is legal in that country.

As far back as 2006, Spanish judges have ruled that since the there is “no talk of money or any other compensation beyond the sharing of material available among various users” that “no offense meriting penal sanction has been committed.”

Raul N. Orejuda Garcia, Magistrate Court judge of Mercantile number 7, then ruled last year 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.”

Fast forward to a few days ago and the same judge, Raul N. Orejuda Garcia, Magistrate Court judge of Mercantile number 7, reaffirmed his earlier ruling.

The case case was part of a suit brought by a local music industry group, SGAE (Sociedad General de Autores y Editores) against eD2K website elrincondejesus for alleged copyright infringement on the site. The owner of the site, Jesus Guerra Calderon, 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 at the time. “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.”

Judge Garcia once again agrees.

“The system of links constitutes the very basis of the Internet and a multitude of sites and search facilities (such as Google), allowing the technical possibility of doing precisely what this procedure is trying to prohibit, which is linking P2P networks,” he said in his ruling.

He added that the owner “does not receive any money directly or indirectly related to the service offered” because the website was open to all, free and no advertising.

Judge Garcia determined that the country’s Copyright Act ultimately discusses the legality of the source not the access “so that most users of these P2P networks acted legally because they have concluded a lawful and valid contract for a fee to a service provider network.”

In the long run it may not matter, at least for file-sharing-related websites like Calderon’s. The govt approved new anti-piracy legislation back in January that will allow a judge with the National Audience, the country’s federal court, to close or block websites accused of facilitating copyright infringement within 4 days as compared to the current year-long process.

However, the law is still still dramatically different from other countries like France and South Korea in that it targets P2P sites and not users.

In fact, Joan Navarro, head of the Coalition of Industries and Creators of Content, previously referred to this effort as a “positive step.”

“They are going after the producers of the piracy, those who spread works without permission from the authors,” she said at the time. “Not the users, which is the case in France and the UK”

So all in all Spanish file-sharers are still in quite an enviable position.

Stay tuned.

jared@zeropaid.com

[Hat Tip]

A number of Spanish indie record labels seem to be suffering from a serious case of delusion, blaming everybody but itself for the music industry’s woes.

For a group of them have decided to focus their legal sights on the govt itself for failing to properly protect it from illegal file-sharing.

They accuse it of “negligence” and demand compensation for the years of “massive free downloading” that they’ve had to endure.

Judges in Spain have ruled on numerous occasions that individual file-sharing is legal so long as there is “no talk of money or any other compensation beyond the sharing of material available among various users,” so this past January the govt tried a different approach by targeting the operators of sites that facilitate copyright infringement.

The govt has replied to the suit by pointing to that new legislation as an example of its efforts to fight online piracy, but the record labels rightly know the law will have little effect on the problem.

“The proposal is insufficient – they could close a Web site one day, and 500 new ones could open the next day in the Ukraine, for example,” says Gerardo Carton, a spokesman for labels involved. “The measure would not resolve the most relevant problem, which is the actual impossibility of us taking civil action against those final users who appropriate music without paying, and systematically violate intellectual property rights.”

Eureka. That’s precisely why the record labels have to focus on giving the consumer what they want, where, and how they want it. The sooner they realize that the better, but sadly we all know they never will.

“We think the Administration is responsible for our plight,” adds Carton, as though the govt was to blame for the industry’s mismanagement. “We demand that the government take effective measures imminently to protect the rights and interests of the record industry, as well as the intellectual property rights of the agents that intervene in the creative musical process within Internet.”

This is where it gets really sad. The record labels are basically asking the govt to figure out a way to presumably filter and “manage” the Internet to ensure that it is able to earn every euro it feels owed.

There are no “effective measures” when it comes to fighting online piracy short of draconian steps like DPI. Is that what the record labels are asking for? It’s pretty frightening to think that groups – especially indie groups – who are so dependent on a culture of free thought and expression to create music in the first place would demand that everybody else surrender those very same rights simply so that it can more from them.

It’s an odd juxtaposition, and summarizes just why the public is growing so weary with record labels and they’re increasingly irrational excuses for their actions.

Stay tuned.

jared@zeropaid.com

[Hat Tip]

Stay tuned.

jared@zeropaid.com

Hairdressers in Spain have decided to protest a recent crackdown by royalty collecting groups there by silencing their salons and urging customers to bring in their iPods instead.

“From now on, when you come to the hairdressers don’t forget to bring your own music from home!” read the signs now gracing salon windows.

The Spanish Society of Authors (SGAE) charges each location a monthly music licensing fee of between €6 ($8) and €12 ($17) a month on behalf of its members, and hairdressers are angry that that means they are essentially demanding to be paid twice for the same broadcast; once by the radio station paying the song and again by the listener – hair salons – on the other end.

It was a surprise visit by an investigator from SGAE that started the protest. After some three decades of listening to music with customers barber Esteban Criado was stunned to learned he had to pay up or turn it off.

“I refused to sign the contract he gave me,” he said. “A few days later I received a letter saying they were going to take legal action against me. Now we are gathering signatures from our clients to complain that this is unjust and an abuse of authority.”

Other hairdressers soon joined in the protest, noting that the radio is simply to provide a “welcoming atmosphere” for their clients and they by no means “make money off the music.”

So rather than pay the fee they are now asking customers to bring in their iPods instead.

SGAE spokesman Antonio Rojas counters that many hairdressers have been paying the fee for years, and that they aren’t exempt from paying a fee to “provide a music service” any more than are “shoe shops and shopping centers.”

“The fees are not designed to damage their business,” added Rojas. “It is very difficult to maintain culture if we do not pay those who create it.”

Something tells me charging businesses for allowing customers to hear the radio won’t help “maintain culture,” but rather wall it off even further. Culture shouldn’t have a price for admission.

Stay tuned.

jared@zeropaid.com

The Spanish govt recently approved anti-piracy legislation that will allow a judge with the National Audience, the country’s federal court, to close or block websites accused of facilitating copyright infringement within 4 days as compared to the current year-long process.

“The new judicial procedure has no legal loopholes,” says Spanish vice president Maria Teresa Fernandez de la Vega when announcing the measure.

Included as part of the Law of Sustainable Economy Bill, the legislation will allow copyright holders the opportunity to lodge infringement complaints with the Culture Ministry’s Intellectual Property Commission which is comprised of independent professionals from the legal, technological and judicial sectors.

“It’s a positive step,” said Joan Navarro, head of the Coalition of Industries and Creators of Content. “They are going after the producers of the piracy, those who spread works without permission from the authors. Not the users, which is the case in France and the U.K.”

That’s precisely what sets the measure apart from places like France or South Korea where they’ve enacted anti-P2P legislation specifically targeting users and not the sites that facilitates illegal file-sharing.

The original bill, first proposed last month, didn’t require a court order to close websites accused of copyright infringement, and also required ISPs to divulge the names and information of alleged file-sharers without court order.

Many quickly objected to that version, crystallized in the manifesto In Defense of Fundamental Rights on the Internet that “Copyright should not be placed above citizens’ fundamental rights to privacy, security, presumption of innocence, effective judicial protection and freedom of expression.”

The version just passed is seen as a “happy medium” between the two interests.

“As long as there is previous authorization on the part of a judge, it preserves the fundamental rights of expression,” said Barbara Navarro, director of Institutional and Governmental Relations at Google Spain. “These kinds of issues require a fast reaction, but it has to be balanced and fair and protect our rights.”

It’s obviously still too early to see what kind of effect the law has, but it’s painfully obvious that file-sharers will simply switch to sites located outside the country’s borders as did file-sharers in the US long, long, long, ago.

With judges in Spain having already ruled on numerous occasions that individual file-sharing is legal so long as there is “no talk of money or any other compensation beyond the sharing of material available among various users” I suppose the only thing left to target was the P2P sites that usually do.

Stay tuned.

jared@zeropaid.com

September

September started off with the continuation of the Jammie Thomas trial where Thomas appealed her $80,000 fine. Amongst other arguments, the fine seemed to be arbitrarily selected.

After a ThePirateBay Mixtape of all the songs Joel Tenenbaum was fined for, an RIAA lawyer took the unusual step of saying that the mixtape was all Joels fault.

France was, of course, back in the headlines in the month when the French Pirate Party had a shot at winning a parliamentary seat, further bolstering the international parties success on the international stage. No doubt, the Pirate Party in that country was able to get some support on the issue of Three Strikes law which, after a few bungled attempts, managed to produce the oddly titled “France Passes Three Strikes Law for Second Time”. Regardless of the French Pirate Party’s growing success, it seemed that the inevitable happened where France adopted their three strikes law.

Tension in Australia over the governments so-called “voluntary-mandatory” internet filter continued when opposition parties wanted to end the farce altogether. In response to some of the criticisms, a minister said that he never wanted to filter p2p traffic.

More news in Ireland happened when one Irish ISP decided to block ThePirateBay.

In the UK, the British government made it official that they supported the three strikes legislation, saying it was an “evolved” plan. The UK ISPs were quick to denounce the move. In a show of even more solidarity against the three strikes law, UK musicians quickly denounced the three strikes law as well. In case there were artists still skeptical about those who are against the three strikes law, a UK consultant said that artists shouldn’t really worry about internet piracy in the first place. Distraught by all those artists arguing against a three strikes law in the UK, the major music labels tried to argue that all artists were united in supporting a three strikes law.

In a rather humorous and ironic moment in September, Sony BMG faced a near repeat of the lawsuit against it for software piracy in France and were accused of a textbook definition of music piracy in Mexico. No doubt the company was once again embarrassed given their stance on piracy in the first place, but it lent credence to the theory that it’s often the case that the biggest complainers to a problem are also often the biggest culprits as well.

Doubts continued with the acquisition of ThePirateBay when GGF was delisted from the Swedish stock exchange. Keeping ThePirateBay accessible for all was under attack, but one Swedish ISP did appeal a court order to block the website. Shortly afterwords, GGF, trying to salvage some credibility, managed to get re-listed in the Swedish stock exchange. Unfortunately, the news was followed up by even more bad news for the buyer when they faced court over unpaid debt. On the legal front, something happened during ThePirateBay trial that few thought was possible, the major record companies and the admins agreed on something – specifically that there were questions to be raised over a judges affiliation affecting his judgment. Admins for ThePirateBay later appealed the decision that the judge was not biased in his guilty verdict citing even more bias from the three judges on the panel.

The Canadian Pirate Party in September was also able to give us a landmark interview when they were one step closer to becoming an official political party. By the end of the month, the party launched a BitTorrent tracker to show once again that there are legal uses for BitTorrent among other things.

October

October started off with the continued, at least for many observers, circus of the acquisition of ThePirateBay. After creating a deadline for the acquisition of the BitTorrent site, the deadline came and went without a purchase. Google also wound up in a bit of controversy when it temporarily removed search results, then re-instated them again. Then, after, once again, failing to get ThePirateBay removed from the internet, the major entertainment industry corporations tried to get, what was described as, the websites ISPs ISP to block access to the website – obviously without much success again. Then, after all the ups and downs, GGF themselves finally admitted that the acquisition of ThePirateBay was “uncertain”. After that fiasco, the legal front for ThePirateBay got even more heated when BREIN was caught forging evidence against the site. Meanwhile, the trial against ThePirateBay was delayed until the Summer of 2010 – putting a halt on the whole trial, no doubt, to the dismay of the copyright industry. Meanwhile in the Netherlands, in spite of falsifying evidence against the admins of ThePirateBay, BREIN won a legal victory against the site. ThePirateBay, after seeing their first sale fall through, said that they were on the hunt for new buyers. Legal issues about the site then took a turn against them when a Swedish court said that the site must be shut down or else the admins faced additional fines.

Not satisfied with a three strikes law, the UK music industry demanded that “illegitimate” p2p sites be filtered as well. Sometime later in the month, a petition surfaced online that would get the government to legalize non-profit P2P activity. Seems like it was just another sign that UK citizens were unhappy about the governments “evolved” plan as well. That was not to say the entire government was on board for a three strikes law though as 21 MPs some time later in the month announced their opposition to the three strikes law; they called it a futile attempt to disconnect pirates. A British ISP also showed further evidence that the three strikes law was ill-conceived by showing just how easy it was to piggy-back WiFi. Ideologies also collided in the country when the major music business argued that The Pirate Party’s idea of a 5 year copyright term would undermine the whole industry. The three strikes debate then roared back in to headlines when a poll conducted with Open Rights Group suggested that 73% of British citizens believed that a three strikes law would harm use of vital services – as if there needed to be more evidence on how many people oppose the law, but further proof was there. It seemed that something happened within the government – whether it was public pressure or France having to legislate that the third strike would be issued by a judge is unclear – as they said that a third strike would be issued by a judge. That didn’t stop Britain’ss top spies from denouncing the three strikes law because they argued that it would fuel online anonymity, thus making it harder to spy on people over the internet. Opposition only continued to mount against the three strikes law when MPs argued that an internet connection is considered an essential service.

Spain made it into the headlines again in October when the government was set to establish an anti-p2p commission.

France, of course, was also in the headlines, but the first headline of the month to come out of the country was definitely an ironic one. The story described the French presidency accused of pirating a DVD. This would make the governing party a repeat copyright infringer of all things. Nothing much happened for a while though until later that month when France’s top court approved of the modified three strikes law where the third strike would be issued by a judge.

In the US, there was finally a resolution for ASCAPs controversial attempt to get performance royalties for ring tones. A judge killed the attempt by ruling that a ring tone is not a public performance.

The whole European Union also made headlines in October when they stunningly did an about-face and gave an OK to disconnect alleged file-sharers.

November

November started rather differently with a story that seemed to have eluded headlines for a while – ACTA. It was revealed that ACTA would bring in a global DMCA and a three strikes law. After facing severe pressure all around the world to have ACTA transparent once and for all, the MPAA hit the panic button and said that criticisms about ACTAs transparency were merely a “distraction”. Later on, an additional leak from the elusive treaty confirmed everyone’s worst fears.

Spain’s government said that they wouldn’t implement a three strikes law.

Norway made headlines when a court ruled that ISPs couldn’t be forced to block ThePirateBay. Sometime later, startling news emerged when an artist was told by a royalty group that they were forbidden from uploading their own work to ThePirateBay.

Interestingly enough, the United Nations also weighed in on the copyright debate by saying that jailing teenagers for p2p was not the answer.

After managing to get a three strikes law in place, South Korea’s copyright industry said that p2p must be filtered.

ThePirateBay made headlines pretty much every month of the year so far, and November was no exception. After the ISPs ISP of ThePirateBay was ordered to shut off access to the site, that entity then appealed the order. Shortly afterwords, a monumental shift from within the site occurred where all torrents were dropped completely and p2p users were directed to magnet links instead (which were compatible with all the popular clients by that time).

MiniNova also made headlines when it announced that they were going legit. User then left the site for more attractive alternatives.

ISOHunt also made headlines when it filed claims against CRIA in self defense.

Meanwhile, in the UK, a very symbolic study was released which showed that artists made more money in a p2p world. It also showed that record labels may be the only entities in the entire business that were actually losing money. Shortly after the study was released, the UK government appeared to be bolder by modifying their three strike law plan and turning it into a two strikes law. British ISPs understandably raised more concern by saying that these types of laws would undermine the digital economy in Britain.

In the US, Fox argued that the US should disconnect file-sharers just like France (with their three strikes law where a judge orders the third and final disconnection).

December

The year is almost out, but just because the year is wrapping up doesn’t mean the news would do the same thing.

In Spain, the copyright wars started to really heat up when the Spanish government signaled that it planned on toughening up copyright laws. Late in the month, Spain mulled shutting down P2P sites without a court order.

In the UK, copyright issues remained red hot when tech giants urged the government to remove a clause in the reform that would force spying on users even if no illegal activity was occurring. British ISPs, in the mean time, reaffirmed that they were against the proposed three strikes law. Adding fuel to the fire, it was discovered that the UKs three strikes law would cost $800 Million per year.

France, in the mean time, made headlines again. For a third time, France’s governing party was caught infringing on copyrighted material. Many observers argued that maybe the French governing party should be disconnected from the internet considering that they were busted a third time for copyright infringement.

ACTA also made headlines when one ambassador implausibly argued that people would walk away from the table if ACTA were to be divulged. Of course, the controversy surrounding the so-called agreement sparked a coalition in New Zealand which aimed to disseminate information about the negotiation and the agreement. Coincidentally, after a few days, New Zealand political parties demanded answers on ACTA.

New Zealand made headlines for other reasons – like their three strikes law moving ahead for instance.

Canada made it into headlines in the biggest way it could. CRIA, an arm of the RIAA, was sued for a historic $6 Billion in damages for not paying artists for selling their music. Regardless of the fact that the case was merely filed, the damage was very apparent with pretty much whatever credibility they had left on copyright related issues pretty much eradicated. It was news that was so big, the owner of a record store wondered why he was being investigated for piracy for having a mere couple hundred CDs without bar codes while CRIA, an “expert witness”, stood accused of pirating hundreds of thousands of works. That didn’t stop CETA, another ACTA essentially, from rearing its ugly head though.

Australia made headlines again in December over, you guessed it, it’s controversial filtering plan. This time, the Australian government revealed their plans for internet filtering. Unfortunately, the Christian lobby signaled that the filtering plan didn’t go far enough. Sometime later, a parody news site made a very humorous article making fun of the Australian governments attempt to filter the internet.

China also made headlines in December when it shut down BitTorrent sites allegedly over porn.

In the Netherlands, BREIN attempted to ban UseNet discussions claiming that what went on in UseNet was simply criminal.

Israel made headlines interestingly enough. Apparently, the most comprehensive study on the subject concluded that Israeli ISPs do, in fact, throttle p2p. The revelation sparked officials to note that the ISPs could face legal action for the activity.

Chile made headlines in December when it resisted American calls to filter the internet.

Back overseas to the US, major copyright industry representatives decided to meet with White House officials to discuss copyright issues. After much criticism, the MPAA were forced onto the defencive. The MPAA answered criticism that they were secretly negotiating without all stakeholders involved by saying that anyone could set up a meeting with US reps too if they so desired. Interestingly enough, an American court also ruled that Canadian site ISOHunt was liable for copyright infringement. How that affects things for the site overall is unclear.

The Joel Tenenbaum case made headlines, though people’s viewpoints had since changed. While the Harvard law professor appealed the case questions were being raised on his performance in the trial. Quite a change considering that toward the beginning, many considered the lawyer and professor a hero – that viewpoint has since started to waiver.

Google was caught up in another copyright case. It seems that having a formal DMCA system where if a result contained infringing material, rights holders can request that the results be removed. Apparently, that wasn’t enough for one record label which sued the search giant for copyright infringement along with several other companies in the search industry.

What year would be complete without the usual headline of the MPAA enjoying record breaking profits again? Even better, the MPAA made profit records not once, but twice.

To 2010 and Beyond!

Where things go from here is unknown. Will 2010 be just as eventful? That much is unknown, but if the past is anything to go by, chances are, many things will happen this year in the world of p2p and tech as well. For now, keep tuned in to ZeroPaid as we get ready to roll on a brand new year. It could be a bumpy ride. We hope you enjoyed the review. Thanks for reading.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

May

May started off with several stories pretty much happening at the exact same time. One of those stories was the increase in support for municipal broadband by major tech companies. Project Greenlight, the municipal broadband company that could in the US scored an uprising that caused more opposition toward the movement that would kill municipal broadband. The so-called “level the playing field” bills that would kill municipal broadband was ultimately sent to committee – that included the Senate version.

Another story was the story about how Canada’s presence on the priority watch listttttt started to lead many into believing that <a href=”http://www.zeropaid.com/news/86148/is-putting-canada-on-a-priority-watchlist-going-to-backfire/” target=”_blank”watch listhlist for many countries held no water. Losing more and more support on the international stage as well as within Canada, the IFPI appeared to be going as far as to obstruct free trade in Canada in a bid to tighten copyright laws – a plan that never really panned out for the IFPI. Later on that month, the Conference Board of Canada suffered a major embarrassment when it was caught pirating a report to call for tough actions against piracy. If that wasn’t bad enough, revelations quickly emerged that the Digital Economic Report by the Conference Board of Canada ignored independent research as well. Ultimately, the Conference Board of Canada withdrew the report.

The constant drum beat of the so-called three strikes law continued throughout the month of May. The European Union re-opened a graduated response meaning the three strikes law was once again on the table. Later on, the three strikes law in Europe was once again killed – this time, for good. It dashed hopes for the major entertainment industry to have a three-strikes-and-your-out system in place for an entire continent. Meanwhile in France, in what seemed to be a very big point in the timeline of the Three Strikes Law in the country was one man voicing opposition to the three strikes law – an opinion that cost him his job, but gripped a nation with an interest in tech and political related issues. In spite of the political outcry, the French Three Strikes law was passed anyway. Then in Britain, a UK copyright group demanded that alleged file-sharers be disconnected from the internet, but the British ISPs stood firm and rejected the calls. Later back in France, there were revelations that the French Three Strikes law would see 1000 disconnections per day.

The MPAA’s overall success continued in May with the major success of Wolverine at the box office showing that movie leaks, once again, has no impact on cinema ticket sales.

The CEO of LimeWire was caught up in Congress trying to convince regulators that the program is safe for consumption. This happened while congress was debating a law that would prevent inadvertent file-sharing.

The RIAA, a few months in to an era they promised would be litigation free, filed even more lawsuits they promised they would never file. While they were making more enemies in that respect, they were also making enemies with an old ally – public radio. One of the RIAA’s members higher ups also made the comment that nothing good ever comes out of the internet – a comment that drew anger from many places around the internet.

The major political fallout of ThePirateBay guilty verdict continued to prove that there was political ramifications as The Pirate Party’sssss support continued to grow and was projected to win two seats in the EU Parliament. Meanwhile, a Swedish bank decided, in spite of an unsettled court case, decided to freeze the bank account of the admins of the BitTorrent site. The demands for a fair trial grew particularly when the admins demanded one. With a political backlash looming, the Swedish government did the unthinkable, push for more draconian laws affecting the internet – in this case, demand mandatory data retention for 6 months. After facing a major fine, prosecutors that miraculously managed to convict ThePirateBay admins demanded further fines and a gag order on the admins. They reiterated their demands saying a $3.6 Million fine was not enough. Supporting the conviction of ThePirateBay admins grew more challenging when news later broke about how the BSA admitted that losses due to piracy were entirely hypothetical – while obvious to most, a reaffirming admission nevertheless. Ultimately, ThePirateBay admins finally made things happen when it was decided that a three judge panel would decide whether or not the original judge that convicted the admins was biased. This happened at roughly the same time when polls continued to show that The Pirate Party was set to win at least one seat in the EU Parliament. Things continued to appear to be going in ThePirateBay admins favour when the courts rejected the demands for an additional fine and gag order. Things grew increasingly hairy when a Swedish minister was caught applauding the outcome of ThePirateBay trial. Meanwhile, The Pirate Party support gained a major supporter when a famousdish writer explained why he is voting for the party.

While the year is filled with studies, one study in particular seemed to reaffirm many observers of the copyright debate’s belief – a flat rate is, indeed, the way to go.

The RealDVD trial kept making occasional appearances in the headlines as Real accused the MPAA of anti-trust violations.

Privacy was also an issue that made headlines throughout the year. At one point, after France decided to push for three strikes law, the government took things a step further and pushed for legalizing the use of malware by police among other things. It was a law so draconian, few believed what they read when the story broke.

The Joel Tenenbaum case re-emerged in the headlines as the Harvard Professor defending an alleged file-sharer suggested that file-sharing is “fair use”. The Harvard Law professor later said that the RIAAs lawsuit campaign was an unconstitutional abuse of the law.

Spain made it into the headlines when the record industry took P2P developer Pablo Soto to court over unfair competition.

The Australian web filtering debate grew when confusing language emerged that the filtering would be voluntary mandatory. That didn’t stop the Australian Christian Group from reiterating calls for a porn filter though.

June

June started off with Spanish citizens demanding internet civil rights. Probably facing huge pressure from the public, Spanish counterparts for the copyright industry later backed down from demanding a three strikes law for the country.

With questions swirling about the future of the RIAAs filesharing lawsuit campaign, the RIAA went public to say that file-sharing lawsuits are not about the money but a “fair and reasonable” campaign.

Things grew more tense around ThePirateBay trial’s outcome. One artist even put one of his albums on the site to protest his art being used against the admins during the trial. Later on, time was up and the admins for The Pirate Bay urged European citizens to get out and vote – though they didn’t exactly say for who, just get out and vote. Things seemed to just play in to Swedish The Pirate Party’sssss favour as the party then went on to win two seats in the EU Parliament. Meanwhile, things quickly went sideways for the admins of ThePirateBay when the three panel judge ruled that the original judge was not biased in making his guilty conviction. The Pirate Party’s success didn’t stop at the EU Election. The party proved to be growing in strength both nationally and internationally – many point out that the victory in Sweden inspired many others around the world to start their own national Pirate Parties. While the Pirate Party movement was growing stronger and stronger, the Swedish government decided to divert 15 police officials to investigating copyright infringement. Interestingly enough, shortly after that announcement, ThePirateBay formally launched its VPN service. Scrambling for some way to stop the overwhelming success of The Pirate Party, a Swedish politician made the unfortunate decision to equate Pirate Party Supporters with rapists. Bad news later emerged for ThePirateBay admins in the midst of all this when a court ruled that the original judge was not biased. By that point, many rumours circulated about the three judge panel being biased as well. Oddly enough, right after the ruling, the admins were issued a court summons via Twitter by Dutch anti-p2p organization BREIN. Also towards the end of the month, many in Sweden questioning the entire judicial system of Sweden. Things were going along smoothly PR-wise for ThePirateBay until news emerged that the website was sold. Many users then flocked to alternatives as a result, outraged and calling the admins “sellouts”. This was, perhaps, the first time the admins experienced negative publicity from the public.

Not to be forgotten, the Jammie Thomas trial took an interesting turn when lawyers moved to bar evidence provided by Media Sentry in the trial. The retrial of Jammie Thomas started later on that month. Unfortunately, in the same month, Jamie Thomas was also fined $1.92 Million for sharing a mere 24 songs.

The MPAA’s trial against RealDVD took a critical turn when the MPAA said that even making one DVD was illegal. Meanwhile, the MPAA found themselves admitting to losing the PR war to “the enemies of copyright”. One might observe that the language further signalled a sort of more mean spirited language that later seems to be part of a later PR war.

Controversy in Canada continued over the Conference Board of Canada’s report when the CEO spoke out to do some damage control only to have an ex-employee counter the CEO’s claims. Meanwhile, uncertainty about the Canadian government’s ability to handle internet related issues grew when the governing party introduced mandatory ISP level surveillance legislation. Sadlypears for many that the governing party let Canadians down upon review of both surveillance bills. The response was swift as many Canadian newspapers responded by making mast-head editorials denouncing the surveillance legislation. Things started to look dicey on the political landscape in Canada when the Liberal party announced that they would combat piracy and ratify WIPO. The reason this was dicey because with the governing party and the Liberal party, there is enough votes to pass anything. Things looked dicey until the Liberal party, no doubt facing internal controversy, backtracked on calls to ratify WIPO and merely saying that their calls to ratify WIPO was merely to mark interest on the subject… honestly! While the copyright debate grew in Canada, news surfaced that BNN, a Canadian broadcaster, was accused of censoring the copyright debate by taking down several videos on the subject from YouTube.

A report out of Russia suggested that the Russian government wanted internet anonymity abolished.

A UK Minister, after the government faced even more pressure to change their minds on the three strikes law position, continued to defy the industry’s calls for a three strikes law saying that such a law was “too draconian”. One of the ways that the copyright industry exerted pressure onto the government was through a study that was cast in to doubt when reviewed. A UK ISP also said that the idea that one can stop file-sharing is “very naive”. Another study in the UK suggested that losses due to piracy were fictitious and that if losses occurred, it wasn’t due to file-sharing and piracy, but rather, gaming and DVDs. Undeterred by a botched PR campaign and growing scepticism about the anti-file-sharing movement, a copyright industry entity argued that a three strikes law was the way to go and that throttling was a waste of time.

Frances LOPPSI 2 law that would allow police to upload malware received an expert review which had further insights and confirmation in the law. Meanwhile, fresh from passing the three strikes law, France went on to use military intelligence to shut down a private BitTorrent website. Later on that month, the French president was dealt with another embarrassing blow to his plans for a French Three Strikes Law when France’s Constitutional Court ruled that the three strikes law was unconstitutional. Fresh from the PR loss of having the three strikes law ruled unconstitutional, French authorities reiterated that they would be going after Snowtiger donators and uploaders. It was that point in time that a new face of the three strikes law would emerge – a judge had to order the third strike and consequential disconnection. This new version seemed to catch on in other countries later on – at least, that’s what other countries were pressured to adopt by the international copyright industry conglomerates. Interestingly enough, like the Swedish Pirate Party, the French Pirate Party was called a “hacker group”. The party refuted being called a “hacker group”.

In New Zealand, after being forced to back peddle on implementing a three strikes law partly due to the major blackout protests, New Zealand gave signals that it would re-introduce the three strikes law in that country.

Let’s not forget that during this month was also the tenth anniversary of Napster. On the anniversary, KFPA Radio interviewed both Jared Moya and myself to discuss the implications of Napster’s original release. Michael Geist marked the anniversary by debunking several file-sharing myths. CRIA, while still in possession of some PR credibility still at that point, freaked out about Michael Geist debunking the file-sharing myths and argued that the file-sharing problem was a “fact”.

Germany also made headlines when critics picked apart the mandatory DNS blacklist proposal. Civil unrest against the government, as a result of this, grew in the country. RapidShare, a German based company later in the month, was fined $33 Million for copyright violations. As a result, many started looking for alternatives to the one-click hoster though it never ultimately affected the services dominance in the one-click hosting industry.

Germany wasn’t the only country having political troubles trying to make ISP blacklists. Political tensions in Finland mounted when a Finnish transparency website was placed on the mandatory blacklist. With many internet related issues facing Germans and a government appearing to ignore their citizens, it might not be a surprise that after the success of the Pirate Party in the EU that the German counterpart managed to snag national seat from a defecting party member of another party. In spite of this, Germany passed surveillance legislation anyway.

The United States made headlines in other ways as well. One of those headlines was ASCAP demanding an additional performance tax for ringtones.

Curiously, Argentina made headlines for the first time this year here on ZeroPaid when the countries newspapers demanded to use data retention to go after alleged copyright infringers.

Banking on the success of the previous victory by the copyright industry getting one Irish ISP to bring in a three strikes law, Irish counterparts of the copyright industry moved to try and pressure more ISPs in Ireland to put in place a three strikes policy.

Australia continued to remain in the headlines with the governments plan to filter online video games as well. This was in the face of severe questions of how much of the internet the government was going to filter.

If there was one issue all countries had reason to worry, it was the continued negotiations of ACTA. During June, consumer groups demanded that ACTA negotiations be halted. One of the concerns of ACTA was a complete lack of transparency.

While artists supporting file-sharing is nothing new, another artist joined the ranks of many other artists who said that there were positives to file-sharing. Later on, Moby said that suing music fans is not a sustainable business model.

July

July saw what may be one of the biggest copyright related loss for the UseNet community. UseNet.com suffered a copyright infringement case loss.

In the US, controversy kept rolling over ASCAPs decision to demand performance royalties on ringtones, but the EFF slammed ASCAP for the demands saying that ringtones are like music being heard on a car stereo system with the car windows rolled down. Towards the end of the month, the hearings on allowing exceptions to the DMCA made headlines when one lawyer argued that a user cannot access legal content forever and it’s an over the top demand to say otherwise.

July also reconfirmed that ThePirateBay had changed. The site made headlines when ThePirateBay announced that it would pay seeders money – all part of a new business model apparently. The acquisition seemed to go as smoothly as one could hope, but just days after the acquisition, things started to fall apart for the deal. The buyer of ThePirateBay was accused of insider trading. Still, The Pirate Party on the other hand was still enjoying the euphoria of their major victories on the national and international stage. In the process, they wrote an op-ed saying that copyright laws endanger people’s digital freedom. The deal between ThePirateBay and Global Gaming Factory looked increasingly bleak as more questions were raised about the acquisition of the site – GGF refuted the questions, saying that the deal was going along smoothly. While the deal was going on, the MPAA echoed previous calls by other arms of the copyright industry to shutter ThePirateBay.

Things in Canada got interesting when The Pirate Party of Canada landed on Canadian shores and began to establish themselves. Meanwhile, as BNN took heat for censoring the copyright debate, BNN responded to criticism saying that the videos were part of a broader round of takedowns and wasn’t targeting the copyright debate in particular. A little bit of a political turf war was seen in Canada on the news that the Pirate Party were entering the political stage. The Green Party said that there was no need for a Pirate Party given that there was already a Green Party willing to take the issues to task. The Pirate Party responded to those comments. It was then that things really turned around in Canada when the governing party held a copyright consultation. Some were sceptical, but most embraced the government initiative (how often does that happen on issues like this?) with open arms – the consultation wound up being the most successful consultation ever in terms of number of responses. During the month though, the consultation seemed to be the talk of the town with many talking about copyright in and outside the consultation. Access Copyright hit the panic button and said that the entire copyright debate will rob creators of their livelihoods.

The infamous Dream Pinball lawsuits in the UK took an interesting turn when wrongfully accused victims caught up in the lawsuit began to step forward. Meanwhile, the UK government started to show signs that they were weakening on their stance on copyright. The government said that they’ll need time to start reducing P2P activity. While it seemed that UK ISPs stood firm against a three strikes law, one ISP, Karoo, suddenly implemented a three strikes policy on their own. Critics called the decision a “KangKaroo court”. Interestingly enough, in the mean time, the UK music industry’s own economist, as if an echo to the major success the MPAA begrudginglyy admitted, said that UKs music revenues were up by 4.7%, a different take considering a while back, there was suggestions that the UK music industry was suffering thanks to competition by the movie and gaming industry.

Frances defiance of letting the three strikes law get away became more apparent this month upon word that judges would be given 5 minutes to rule on each disconnection – 5 minutes of work that required far more time to go through on a case-by-case basis. The PR war kept rolling on though when the French broadcaster that fired the employee for voicing his opposition to the three strikes law was sued over the incident. Meanwhile, the three strikes law was then delayed a few months.

The Jammie Thomas case roared back into the headlines proving that the case wasn’t over. After dealing with the blow of being fined millions, Jammie Thomas’ legal council announced that they would be appealing the court decision – one of the reasons would be based on constitutional grounds of the fine in question. The back and forth action continued in the courtroom when the RIAA demanded that Jammie Thomas be barred from P2P. Jammie Thomas’ legal council later confirmed that one of the reasons for appealing was because of constitutional questions being raised by the fine.

The Joel Tenenbaum case made headlines when the RIAA cried fowl over the idea that the Media Sentry evidence should be suppressed on the basis of the company violating wiretapping and private investigation laws.

When everyone thought that the EU-wide three strikes law was finished, there was word that one EU parliamentarian suggested that download regulations needed to be overhauled. Things got dramatic on the EU stage when one European anti-piracy group called The Pirate Party’s message “criminal”.

New Zealand made headlines in July again when the government revealed a newer gentler three strikes law. In fact, one MP suggested that there should be a blank tax for P2P so as to legalize it.

On a positive note, a Spanish judge in the same month ruled that not-for-profit P2P was legal.

On a more sad note, July saw South Korea’s three strike law go into force.

Things grew somewhat scary when Finland mulled banning the activity of talking about DRM circumvention.

It wasn’t always bad news throughout the year for Australia. The government suggested that maybe there was a more appropriate way to deal with P2P – possibly warming up to the P2P movement in a way. In an odd turn of events, Australian ISPs suggested that the controversial filtering plan by the Australian government would not slow down internet speeds – one of the major criticisms of the Australian internet filtering plan.

Creators continued to question the big copyright companies tactics with UK legend Stephen Fry comparing the RIAA to big tobacco companies. Lawrence Lessig weighed in himself on P2P saying that P2P is the new prohibition.

As if to show one more sign that the file-sharing movement was pretty much unstoppable, one small developer was developing one method of putting a song into a picture that would be readable and played back into audio. What was particularly fascinating was seeing how one could manipulate sound via Photoshop – not exactly a conventional software for modifying sound, but video demonstrations proved that it was possible.

August

News about Joel Tenenbaum rolled right from July to August when word came out that Tenenbaum was fined $675,000 for sharing 30 works. After the ruling, Tenenbaum set up a website that accepted donations that would go towards fighting the RIAA in court.

The Jammie Thomas case too made headlines when a revelation emerged that the US government was stepping in to demand that the judge throw out claims of unconstitutionality.

It seemed as though BREIN made some inroads in a Dutch court when a judge ruled that ThePirateBay was legally obliged to block users from the Netherlands. Amidst the commotion surrounding ThePirateBay, Brokep, an admin of the BitTorrent site, announced that he was leaving the website. Undeterred by repeated bad news about the deal between GGF and ThePirateBay, rumours surfaced that the company planned to acquire even more BitTorrent sites once the current deal was wrapping up. Along side that were rumours that a major record label was about to make a deal with ThePirateBay. Of course, The IFPI wanted GGF to pay for ThePirateBay fine if the deal were to go through. Not liking the earlier ruling in a Dutch court, ThePirateBay then said that it would challenge the Dutch courts decision to force the website to block Netherlands traffic. It was then that GGF made another bold move by announcing that it was negotiating a licensing agreement with a performing rights organization. Unfortunately, shortly after the announcement, GGFs stock was halted until the company produced the cash it promised to buy ThePirateBay. Trying to salvage the acquisition of ThePirateBay, GGF publicly disclosed their grand plan to legitimize ThePirateBay. Unfortunately for GGF, police began to suspect insider trading. Legal troubles for ThePirateBay continued when a Swedish court ordered a Swedish ISP to block ThePirateBay. Towards the end of the month, GGF investors abandoned ThePirateBay acquisition. The escapade wasn’t over though as GGF then said that GGF investors approved of the plan to acquire ThePirateBay. Things went south again when tax collectors seized GGF CEOs assets that would go to paying back taxes.

In France, steamed by the slow progress of the French Three Strikes Law, a special session was set aside to deal with the law as quickly as possible.

Stunningly, there was movement again to neuter provisions in the EU telecoms package that would once again revive the EU-wide three strikes law.

Meanwhile, in Canada, the copyright consultation continued to prove to be a hit amongst Canadians with more and more submissions continuing to pile up. Remarkably, while all this was happening, the copyright industry had the audacity to call for a Canadian three strikes law. It would prove to be one of the last calls to do so in the year as well. Coincidently, the Canadian Manitoba Music industry, during a round table, shunned CRIAs stance as if to re-highlight the rift between Canadian record labels and CRIA. Things continued to remain interesting in Canada’s copyright consultation when DOC supported the expansion of “fair dealings”. More calls to expand Canada’s fair dealings continued to roll in to the consultation. Adding fuel for the demands for a more liberal approach to copyright, the ESA pointed out that the Canadian gaming industry grew without the need of a Technical Protection Measure or anti-circumvention law in place. No doubt freaking out about the whole consultation process and where it turned, the copyright industry was probably scrambling for a plan. It got one, but stacking the town hall meeting in their favour didn’t exactly go over very well for Canadians. In an almost symbolic move, an American music group called the idea of a fair copyright law in Canada “disgusting”. The NDP, the political group that sparked that comment responded, saying that they make no apology for their stance on copyright.

With other countries having suggested that they would filter the internet, Malaysia suggested that it, too, plans to filter the internet.

Germany saw one MP renew calls to legalize file-sharing, saying that a neutral stance of a blank tariff was the way to go. At the end of the month, the German Pirate Party even won several government seats.

Things started to grow dark in Australia when ISPs essentially asked via proposed legislation to become copyright cops.

In the UK, the criticism about “KangKaroo Courts” gained momentum when UK ISP Karoo backed down from plans to implement a three strikes policy and, instead, require a court order. With all this uncertainty about the digital future of the UK, it was probably no surprise when news emerged that the UK managed to get their own Pirate Party. The timing of this couldn’t be better since it was just a short while later that the UK government turned around on its initial stance of not legislating in a three strikes law and seriously planned on a p2p crackdown. The British Pirate Party quickly built a name for themselves, writing a provocative piece on why the cost to fight file-sharing was “too high”. It was then that the UK government pretty much made it official that it would disconnect file-sharers after all. A British ISP was dismayed at the governments change of heart on the issue of disconnecting file-sharers and said that the war on file-sharing was futile. This caused the British government to be on the defencive with their plan to disconnect alleged file-sharers.

Things grew bleak for Mininova in August when a court ordered the site to remove all copyrighted content.

Things seemed to start to turn around in Finland upon news that a Finnish Pirate Party was officially registered in the country.

One Irish ISP went along with the idea of blocking ThePirateBay, but it turns out that it was the only ISP willing to do so at that time. The Irish Pirate Party announced its opposition to the ISP decision.

The MPAA’s war on RealDVD seemed to draw to a close in August when a judge barred the sale of RealDVD.

One artist in August said that P2P was a global word of mouth, becoming yet another creative that said that there were positive attributes for file-sharing.

Stay tuned for the final part of the review.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

There’s a stunning turn of events occurring in Spain right now. According to information gathered by EDRI, the Spanish government is currently in the process of passing legislation that would allow rights holders to effectively be judge and jury over copyright infringement accusations.

The Spanish arts and user community expressed outrage that something like this would even be considered in the first place. It may be passed through Spanish parliament by 2010 and have a devastating effect in the Spanish cultural community.

The real damage being done, if this legislation were to pass, would no doubt spread beyond the borders of Spain given how the Three Strikes Law passed in France and effectively started to spread throughout the world.

The Spanish Pirate Party responded (Google Translated) saying that this legislation will create a committee of censorship in the Minister of Culture and joined the “Sinde’s list” in response.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

The copyright wars are heating up in Spain with news that the govt there is proposing legislation to increase protections for intellectual property on the Internet.

If you recall, it was back in 2006 that a judge ruled in a illegal downloading case that since there “no talk of money or any other compensation beyond the sharing of material available among various users [then] no offense meriting penal sanction has been committed.”

The courts made an even bolder move this past June when a judge ruled that illegal distribution requires something “tangible” to exist, like a website, and on which the actual sharing must occur. He said he recognized 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 Ley de Economia Sostenible (Sustainable Economy Act) would amend the Services of the Information Society and Royal Decree Law of 1996 by adding the revised text “protect intellectual property against Internet piracy. ”

According to the law’s text, the Culture Ministry will have the power to close websites accused of copyright infringement without a court order.

It reads:

Article 158. Commission on Intellectual Property.

Is created in the Ministry of Culture, the Commission on Intellectual Property as a body at national level, to exercise the functions of mediation and arbitration and safeguarding intellectual property rights assigned to this Law

ISPs would also be required to divulge the names and information of accused file-sharers, also without court order.

A group of activists is taking the text establishing an intellectual property commission particularly seriously, afraid it could silence speech and thought without benefit of trial.

“We’re left in legal uncertainty, if anyone can come and close your page for supposedly copyrighted photos uploaded by a third party, you are left very unprotected,” said Jesus Encinar, founder of Idealista.com.

Culture Minister Ángeles González-Sinde, a scriptwriter, film director, and former president of the Spanish Academy of Arts and Cinematographic Sciences, insists the average Internet user will be fine.

She said it “only aims at addressing the problem of illegal supply, and not the use that can make citizens of their freedom of this great medium of communication and Internet discussion is. The intellectual property committee proposed by the new law will act only upon request of a party who alleges that his copyright is being exploited by a page without permission.”

But, that still means power will reside with the govt by default and it will be up to individuals to prove their innocence rather than the govt to first prove guilt. For again, the process will be conducted via committee and not via the courts.

Opposition is growing to the legislation and has led a group of journalists, bloggers, Internet users, professionals and developers to express their concern that the law will affect the free exercise of freedom of expression, information, and the right of access to culture on the Internet

From their manifesto “In Defense of Fundamental Rights on the Internet“:

1. Copyright should not be placed above citizens’ fundamental rights to privacy, security, presumption of innocence, effective judicial protection and freedom of expression.
2. Suspension of fundamental rights is and must remain an exclusive competence of judges. This blueprint, contrary to the provisions of Article 20.5 of the Spanish Constitution, places in the hands of the executive the power to keep Spanish citizens from accessing certain websites.
3. The proposed laws would create legal uncertainty across Spanish IT companies, damaging one of the few areas of development and future of our economy, hindering the creation of startups, introducing barriers to competition and slowing down its international projection.
4. The proposed laws threaten creativity and hinder cultural development. The Internet and new technologies have democratized the creation and publication of all types of content, which no longer depends on an old small industry but on multiple and different sources.
5. Authors, like all workers, are entitled to live out of their creative ideas, business models and activities linked to their creations. Trying to hold an obsolete industry with legislative changes is neither fair nor realistic. If their business model was based on controlling copies of any creation and this is not possible any more on the Internet, they should look for a new business model.
6. We believe that cultural industries need modern, effective, credible and affordable alternatives to survive. They also need to adapt to new social practices.
7. The Internet should be free and not have any interference from groups that seek to perpetuate obsolete business models and stop the free flow of human knowledge.
8. We ask the Government to guarantee net neutrality in Spain, as it will act as a framework in which a sustainable economy may develop.
9. We propose a real reform of intellectual property rights in order to ensure a society of knowledge, promote the public domain and limit abuses from copyright organizations.
10. In a democracy, laws and their amendments should only be adopted after a timely public debate and consultation with all involved parties. Legislative changes affecting fundamental rights can only be made in a Constitutional law.

A group of these same people was able to hold court with González-Sinde yesterday where they asked her to explain the proposal a bit more in an effort to alleviate some of their fears. However, rather than finding comfort they left “disappointed” and “even more concerned than before.”

Journalist Ignacio Escolar even quipped “are you going to do Spain what’s happened in China?”

González-Sinde simply repeated her understanding that the law was intended to target suppliers of copyrighted material and not individual users, but many still left the meeting unconvinced.

Though not having endorsed the Sustainable Economy Act, members of Spain’s music sector took pains to demand greater copyright protection a few days ago in protests over their their industry’s job losses at the hands of piracy and illegal P2P.

“We have already lost too many thousands of jobs in the music sector while successive governments have looked on with indifference,” said Antonio Guisasola, president music label association Promusicae. “Now is the time to demand, through this industry ministry, that [this government] acts with decision and legislates adequately.”

He spoke of the need for a “peaceful revolution” in which music artists defend what it is theirs.

One rather naive singer/songwriter by the name of Aute even went so far as to claim that without such a draconian crackdown on P2P that in “five years this will all disappear,” that “there will be no songs nor music.”

Guess nobody’s told him that since the advent of P2P in 2000 the number of albums produced has more than doubled.

The truly sad thing is that the music industry will find this not to be the silver bullet they’ve been idly waiting for. Instead they will find people sharing content as they always have it will just take on different shapes and forms.

Stay tuned.

jared@zeropaid.com

Much to the chagrin of copyright holders and govt officials, Spanish courts have a long history of recognizing the difference between commercial and noncommercial file-sharing, and looks as though the former intends to change that.

It was back in 2006 that a judge ruled in a illegal downloading case that since there “no talk of money or any other compensation beyond the sharing of material available among various users [then] no offense meriting penal sanction has been committed.”

That decision has led to the annual inclusion of the country on the US’ Congressional International Anti-Piracy Caucus Watch List, even going so far as to say Internet piracy there has reached “epidemic” proportions.

“Internet piracy in Spain has reached an epidemic level, and rights holders lack the necessary tools to enforce their rights on the Internet,” the group said after its most recent report. “P2P piracy in Spain 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.”

The courts made an even bolder move this past June when a judge ruled that illegal distribution requires something “tangible” to exist, like a website, and on which the actual sharing must occur. He said he recognized 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.”

Now according to Publico, the Spanish govt is working to solve this whole “epidemic” by creating an interministerial commission to protect online intellectual property rights. Comprised of representatives from the Justice, Industry, Interior and Culture ministries, it would seek a legal framework to solve the problem of illegal downloading.

The new committee will replace the Intersectoral Commission Against Piracy, under the Ministry of Culture, which has so far focused its efforts mainly on raising awareness of copyright laws among Internet users.

It comes as the result of lobbying by ISPs and copyright holders whom were unable to reach an agreement on how to solve illegal P2P earlier in the year,

Secretary of State for Telecommunications and Information Society Francisco Ros says all the concern is misguided, and reiterated in response to the news that it’s an”urban legend” that there is more digital piracy in Spain than in other countries.

He noted in the past that “there is no objective data“ in the 2009 Piracy Watch List and that other countries with similar percentages of illegal file-sharing, like Germany for example, are not listed in the report.

What it all comes down to is perception, and copyright holders perceive that file-sharing is more rampant because the courts have been on the side of file-sharers. However, that doesn’t necessarily mean more people actually are.

Unfortunately, as we’ve always witnessed in the file-sharing debate, the truth rarely prevails and profits supercede the public good.

Stay tuned.

jared@zeropaid.com

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?

Stay tuned.

[PC via TF]

jared@zeropaid.com