In common with many similar sites, FenixP2P.com and MP3-es.com carried no content of their own, but instead linked to other locations where content was hosted. A negative ruling against their operators seemed unlikely as Spanish courts have continually acquitted defendants running similar sites.
It therefore comes as a quite shock to hear that the Provincial Court of Vizcaya has sentenced the operators of both sites not only to fines, but a year in jail.
After originally being acquitted, an appeal in the case was brought by ADES (Spanish Association of Distributors and Publishers of Entertainment Software) and Promusicae, the well-known recording industry outfit.
While the court agreed that neither site actually hosted any infringing content, it noted that the defendants organized and made available links which enabled free downloads of copyright works, from which they intended to profit via advertising.
Crucially, the Court of Vizcaya viewed linking very differently to other courts handling similar cases in the past, when it described the act as “communicating to the public” and not an exchange between individuals.
Lawyer for FenixP2P, Carlos Sanchez Almeida, says the decision is completely wrong and can only be viewed as a political statement.
“FenixP2P was a P2P links page that all courts have declared exempt from criminal liability in recent years,” he explained.
“Given the general atmosphere in the country after the internet campaign against the Sinde Law, a statement like this can only be understood in political terms.
“The Provincial Court of Vizcaya did not hear directly from experts and witnesses, in violation of the principles of contradiction and immediacy,” he added.
Almeida says he is considering his response to the decision, possibly to include an appeal to the Constitutional Court and even the European Court of Human Rights.
