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

More than 300 members of Spain’s Internet Users Association (AI) protested outside that country’s culture ministry in Madrid recently to ensure the govt doesn’t limit their Internet freedoms ahead of forthcoming legislation expected to crack down on illegal file-sharing.

The protestors demanded “civil rights, universality, and neutrality in Internet.”

“To convert public funds into a free bar accessible to just a few, to finance projects without economic viability, or installing privileges such as the ‘digital canon,’ is not just lacking in solidarity, but is profoundly immoral,” said AI in a statement.

They want an end to the “copyright tax” (digital canon) on devices that can copy music or movies, increased broadband access for all, net neutrality, and an assurance that P2P file-sharing will remain legal.

AI president Victor Domingo insisted on the need to use new technologies “as a battlefield in which to fight for our civil rights.” These include the “equality of opportunities” to broadband access. He said “there are 4 million Spaniards [out of 46 million] who cannot get access to broadband because of where they live. In addition, we have [in Spain] Europe’s slowest and most expensive broadband.”

Domingo added that “the contents industry must accept that business models that cannot compete in the new technological scenario have to disappear, and they cannot sustain themselves artificially at the cost of restricting civil liberties.”

The protests come after Promiscuae, an association of Spanish record labels along with EMI, Sony, Vivendi Universal, and Warner Music recently appeared in court in their suit against P2P software developer Pablo Soto for what they call “unfair competition.,” demanding $19.9 million USD in alleged damages due to users of his software “free riding” on their copyrighted material.

The problem however, is that Spanish courts have repeatedly ruled that file-sharing isn’t illegal so long as it’s not for commercial gain, and that’s exactly how AI hopes it remains.

Domingo also lambasted the new culture minister, Angeles González-Sinde, as being “legally incapacitated” because of “her prior association with the world of cinema.” González-Sinde used to be the head of the Spanish Cinema Academy and has been a vocal critic of illegal file-sharing.

jared@zeropaid.com

The trial against P2P software designer Pablo Soto has finally begun in a Spanish courtroom. The Promusicae association of Spanish record labels along with EMI, Sony, Vivendi Universal, and Warner Music are suing Soto what they call “unfair competition.” They are demanding $19.9 million USD in alleged damages, $35,000 for the PI’s it used to get the secret pics above, plus court costs.

“They allege that with a ’conservative calculation,’ each downloader of the software has shared one copy of protected musical material,” Soto’s lawyer told ZP after the suit was filed. “As Pablo’s companies sell software and advertisements, he is ‘free riding’ over their property and, as free riders, they are liable and have to pay.”

Promusicae and the majors say that some 25 million people have downloaded free music using the company’s P2P software Blubster, Piolet, and the best known, Manolito P2P.

The problem however, is that Spanish courts have repeatedly ruled that file-sharing isn’t illegal so long as it’s not for commercial gain.

The labels decided to sue Soto after unsuccessfully suing individual file-sharers. One case in particular, Judge Paz Aldecoa argued that a guilty verdict would “would imply the criminalization of socially accepted and widely practiced behavior in which the aim is in no way to make money illicitly, but rather to obtain copies for private use.”

Record labels are trying to make the novel argument that the file-sharing software created by Soto was commercialized “with the finality of exchanging musical files… to defraud intellectual property rights.”

Guisasola adds “his activity is parasitical towards ours, and he is getting rich by doing it. He has created a tool for fraud, and for that he must be made responsible.”

Soto, who was not questioned by the accusation on the first day of the trial, told reporters outside the court that his technology was “not designed to transmit any concrete activity, with or without copyright. I do not feel a scapegoat, but neither the hero of illegal downloads.”

Soto added: “Technology is always neutral, and you cannot accuse the developer of a program because of the use made of it by its users.” He claims he does not have the kind of money demanded by the labels, and points out that he uses public transport.

The case is a last ditch effort by record labels to fight P2P, but the notion that if you sue a software developer in order to somehow contain file-sharing is just ridiculous. The record industry needs to channel this time and effort towards creating new solutions to meet the demands of music fans, and not waste it on what is essentially a losing battle.

A ruling is not expected for several months.

A Spanish court has sentenced 22yo Adrián Gómez Llorente to six months in jail and fined him €4,900 euros ($6,496 USD) for operating an illegal file-sharing Web site.

He was found have been using copyrighted material to benefiting economically via his site, infopsp.com, which created by him to offer movie and video game links. The profit motive was revenue he earned from advertising that appeared on the site.

Until now, legal cases in Spain involving illegal downloads have been shelved or the accused party was acquitted, essentially on the grounds that no profit motive had been proved. Several court cases in Spain had laid down jurisdiction that established that no crime is committed if no monetary exchange can be proved; the fact that a work was protected by copyright law was not taken into consideration if no profit motive was apparent.

The La Rioja ruling says Gómez “put at the disposal of [Internet] users means to obtain illicit copies of works protected by authors rights… obtaining a pirated copy in their computers without the consent of the [work's] title holder.”

The ruling says that in addition to making money out of the advertising on his site, Gómez also earned income from mobile phone SMS Premium messages. Gómez was tried and sentenced after being denounced by video-game owners’ association ADESE, and Spanish videographic union UVE.

Spain’s entertainment industry is hoping the case sets a new anti-file-sharing precedent. It follows a high-profile Spanish case against various BitTorrent tracker sites, which were accused by Microsoft, Spanish authors’ and publishers’ collecting society SGAE, Spanish labels association Promusicae, and rights group Egeda of facilitating links to copyrighted material via P2P application eMule.

Both a Madrid court in 2007 and the provincial Madrid high court in 2008 ordered a stay of proceedings in the case, arguing that offering links was not a criminal activity and did not violate intellectual property laws.

Llorente says the verdict will have no impact on other file-sharing lawsuits and that he plead guilty only to minimize the potential personal impact a drawn it case could have (GOOGLE TRANSLATION).

He also said that he hoped it would encourage other webmasters to fight similar charges, which are part of an overall strategy by entertainment industry &quot to find people like me who can not defend (themselves).”

Llorent emphasizes the fact that he didn’t benefit economically from the site, much like The Pirate Bay founders have argued, and that he earned only enough money to “economically sustain” his website.

jared@zeropaid.com

Pablo Soto, founder and CEO of MP2P Technologies, announced today hat he has been served with an unprecedented lawsuit from Promusicae, the organization that represents the recording industry in Spain.

Promusicae filed a claim with the Madrid Court for Commercial Matters against Pablo Soto Bravo as the creator and operator of the Blubster, Piolet and Manolito file-sharing networks for allegedly “facilitating the illegal interchange of copyrighted music.” It argues that the P2P networks he created were developed for the sole purpose of sharing music.

“All the promotional slogans on Soto’s websites urge users to swap music recordings,” reads a Promusicae press release. “Their wording, always in English, encouraged the user to ‘enter into the world of free music downloads, to download music while you chat with your friends’ or said that ‘million users in the whole world can share their music files and help the online community to grow.’”

Submitted in the lawsuit are the pictures shown below. They were apparently taken in the MP2P’s offices by private investigators hired under the guise of wanting to buy advertising on the P2P network.

Antonio Guisasola, President of Promusicae, said that this “exhaustive and well-documented” claim will be used “to fight the sense of impunity with which people take advantage of the new technologies to infringe intellectual property rights of creators and other music professionals.”

It seeks $$19.9 million USD in alleged damages, $35,000 for the PI’s it used to get the secret pics above, plus court costs. The damages are calculated with the conservative estimate that each person who downloaded one of Soto’s file-sharing programs also used it to download one copyrighted song.

“We intend to vigorously defend ourselves against this shake down attempt by the major label cabal,” said Soto. “Rather than embracing technology, they have chosen a path that will ultimately lead to their own demise, as evidenced by the label’s consistent decline over the past decade. Litigation is in itself not a valid business model for them, however, it has been a dogged and futile pursuit of theirs since the advent of P2P.”

“Promusicae tried to proceed with civil suits against users of P2P networks in Spain and, after being halted by the Court of Justice of the EU, it has decided to go against a neutral communication tool such as P2P technology,” he added.

Pablo Soto is considered one of the pioneers of P2P. In 2001 he developed the Manolito P2P file-sharing network protocol as well as two file-sharing clients, Blubster and Piolet, to use on it.

Now MP2P claims in its press release that it’s being sued for “unfair competition,” a claim which is so far unsubstantiated by Promusicae or Soto himself. At this point it appears to be a simple case of copyright infringement being that the damages sought and language used are centered squarely on the software being used to download music illegally.

Senor Soto hasn’t yet replied to my inquiries in regards to the case, but will post his remarks as well as any updated details as they come in.

Stay tuned.

**UPDATE: Had a chance to get a few words from Pablo Soto’s lawyer in response (TRANSLATED FROM SPANISH).**
ZP: The press release said that MP2P is being used for "unfair competition," but I find nothing to substantiate the claim. Promusicae instead claims that the damages sought are based on the copyright infringing practices of the the software’s users, and that Soto, as the developer and alleged promoter of the software and its practices should be held responsible financially.What is the disposition and charges alleged in the case?

PSL: The claims are based upon the downloads of the software. They allege that with a "conservative calculation", each downloader of the software has shared one copy of protected musical material. As Pablo’s companies sell software and advertisements, he is "free riding" over their property and, as free riders, they are liable and have to pay.

(Note: Apparently "free riding" refers to the unfair competition claim which is what their case is based on)

ZP: Anythign else you’d like to mention or add?

PSL: The most important one is the fact that they have not claimed for a preliminary remedial injunction to stop the activity. If Pablo would be acting against the law, they should have asked in court to for a quick previous temporary resolution as to stop his activities, which they have not done. If they would be sure about there claim, they should have asked for this immediate reolution.

Spain is the country in the world where most resolutions protecting copyleft music have been resolved. Between the 8 resolutions defending Creative Commons and Copyleft authors, the Madrilean court of Appeals resolved last July that there are two markets: the traditional one, based on copy control and DRM (Digital Rights Management) and another new one which uses Internet as its distribution channel and protects its rights with general public licenses. Soto’s software is the tool used by these authors to distribute their works, and they should be protected.

**Special THX to Hal Bringman for analysis and assistance with coverage of the story.**

]]> http://www.zeropaid.com/news/9534/record_labels_sue_spanish_p2p_developer_for_unfair_competition/feed/ 4 http://www.zeropaid.com/news/7951/spain_legalizes_filesharing_if_not_for_profit/ http://www.zeropaid.com/news/7951/spain_legalizes_filesharing_if_not_for_profit/#comments Fri, 03 Nov 2006 17:03:18 +0000 soulxtc A Spanish judge has dismissed charges against an anonymous 40-year-old man accused of file-sharing since the man’s intent was not to make money.

Yesterdays ruling by Judge Paz Aldecoa of No. 3 Penal Court in the northern city of Santander said that there was “no talk of money or any other compensation beyond the sharing of material available among various users.”

The judge furthered by saying that “No offense meriting penal sanction has been committed.”

The ruling was a huge blow to the music industry who had sought a 2-year sentence against the man accused of violating copyright laws by downloading albums from file-sharing networks and then offering them to others via e-mail and chat rooms.

The judge argued that a guilty verdict would “would imply the criminalization of socially accepted and widely practiced behavior in which the aim is in no way to make money illicitly, but rather to obtain copies for private use.”

It would seem tat the ruling may be short-lived however, as not only does the music industry plan to appeal but, Justice Minister Juan Fernando Lopéz Aguilar says Spain is drafting a new law to abolish the existing right to private copies of material. He added that while copied material for private use had yet to be properly defined in legal terms, artists’ rights must be protected as much as possible.

Recent rulings against file-sharing have been dramatically different for people in other European countries, as 22 people in Finland, and also 2 in Sweden, were each fined for similar charges of illegal file-sharing.

SOULXTC: walking the streets of P2P

Todoscontraelcanon.es (all against the levy) is collecting signatures under a “Your Signature Counts” slogan, and vows to challenge the new Ley de Propiedad Intelectual (Intellectual Property Law) by “any legal means available” – including action through the parliamentary ombudsman and political lobbying of parliamentary deputies.

Ofelia Tejerina, of the Asociación de Internautas (Web Surfers’ Association), declared: “This law sidelines the rights of consumers of digital media since by the simple act of buying a digital reproduction system, whether they use it or not, or make personal copies or not, they’ll have to pay the levy.”

The legislation, approved by Congress on Thursday, toughens previous provisions. An early May circular from Spain’s fiscal general del estado, or chief prosecutor, allowed downloads for purely personal use.

Now Spaniards caught grabbing content from, say, eMule, will have to reimburse rights holders for losses — although such losses will be difficult for authorities to track.

But the government is going after Internet service providers; it’s a criminal offense for ISPs to facilitate unauthorized downloading.

Is this an example of what is to come in the United States or other parts of Europe? People have long discussed this concept, known as “compulsory licensing.” Meaning that basically the government assumes people are going to be putting copyrighted material on this blank media, Other ideas in the same vein include licensing fees imposed on DSL or cable customers, again assuming they are going to be making unauthorized copies of copyrighted material.

This takes fair use and completely throws it out the window. God forbid you have taken some home videos and copied them to a blank cd or memory chip. You will be paying into some kind of fund administered by some kind of beaurocrat and overseen by some RIAA/MPAA type trade organization.

Please prevent this from happening in your country.

Here are some links to a spanish blog covering the report:
http://www.typicallyspanish.com/news/publish/article_5010.shtml
http://www.typicallyspanish.com/news/publish/article_5000.shtml