File-Sharing and Link Sites Declared Legal in Spain
Written by enigmax on March 15, 2010After early calls to shut down a Spanish file-sharing site were dismissed, music group SGAE pinned its hopes on success at the full trial. But, the outcome for them was nothing short of a disaster. The judge declared that both non-commercial file-sharing link sites and non-profit use of P2P networks are legal in Spain.
Despite many rulings which have declared file-sharing sites legal if they don’t profit directly from copyright infringements, in recent years its become something of a custom in Spain for music rights groups to attempt to close down sites in advance of a full hearing to assess their legality.
One such case involves eDonkey link site elrincondejesus.com and although fairly low profile worldwide, the site will now start to set headlines.
Back in May last year, site and bar owner Jesus Guerra received a complaint from music group SGAE (Sociedad General de Autores y Editores) which alleged the site abused the copyrights of its members.
In a June court appearance, SGAE hoped to get an early injunction to shut Elrincondejesus immediately in advance of a full hearing which would happen at a later date. Guerra protested that his site is legal, carries no advertising and simply provides links like any other search engine.
Judge Raul N. García Orejudo threw out the request for an immediate closure of the site in July, declaring: “P2P networks, as a mere transmission of data between Internet users, do not violate, in principle, any right protected by Intellectual Property Law.”
Now the full case has been heard and the outcome is nothing short of a disaster for SGAE.
In order to assess if there had been a breach of Spain’s Intellectual Property Act, the court had to decide if simply providing links to copyrighted works was the same as making those works available to the public. Judge Raul N. García Orejudo decided that offering an index of links and/or linking to copyright material is not the same as distribution and noted that under current law there is nothing which prohibits such sites from operating.
In making his decision the judge also looked at the finances of the site. He said the site was not a business since the operator of Elrincondejesus made no direct or indirect profits from its operation. Apparently on a roll after confirming non-profit file-sharing sites are legal, he gave users of those sites a nice surprise too.
“P2P networks are mere conduits for the transmission of data between Internet users, and on this basis they do not infringe rights protected by Intellectual Property laws,” he declared. Therefore, if an individual uses P2P networks like eDonkey or BitTorrent to obtain copyright material for non-profit reasons, the act is completely legal.
The outcome of this case is such bad news for SGAE it’s expected they will appeal the decision. Or get the law changed. Or both.
Previously: Top 10 Most Pirated Movies on BitTorrent
Next: Court Acquits BitTorrent User Citing Faulty Evidence
95 Responses
yay! go Spain!
Brilliant. A court system with intelligence and the ability to comprehend.
When can we in the States look forward to having this?
wonder if im allowed to host a tracker in spain than.
Flawless Victory
@Rob,
“When can we in the States look forward to having this?”
When hell freezes over and pigs fly.
You’re talking about the MAFIAA’s HQ / base of operations, with Obama giving full support for ACTA expect things to get worse… not better.
brb spain
not sure that it is the court system that has ‘intelligence and the ability to comprehend’ or only the judge in this case. whichever or whoever, i hope this decision and how it was reached is transfered to all countries and not looked forward to in any one country only. maybe some common sense emerging at last? about time, i think!
@ 6 awww you gonna cry now?
Great news!
EPIC WIN.
Score one for filesharers, zero and FAIL for the copyright lobbyists/terrorists/MAFIAA
And I can still remember the idiots like Ninja and RIAAtard etc insisting that there was massive bribery going on in this trial.
Because they all were too dumb too seperate their paranoid fantasies from a future outome and were further dumb enough to somehow assume they had the power of knowing what was happening inside a Spanish judges chambers lol.
Ola Buena Espaynol!!! good stuff, that’s the way forward…
Not to just repeat what everyone else is saying, but there is a reason why giveing knolage to the masses is dangerious….
You gave us the CD…we made maxtapes. You give us the VCR, and we get the freedom to watch TV movies when we want. Give us the internet, well, what do you think 90% of the traffic on sites such as youtube are for?
I live in Spain. Just a few words to tell you that the SGAE is not a music group. It’s a copyright lobby, just as the RIAA or MPAA is in the US.
Regards.
I wouldn’t celebrate just yet. Although the end result is positive, I have read the legal reasoning. It is atrocious, and I am afraid that it will be knocked down easily in appeal, which would be counter-productive:
http://www.technollama.co.uk/linking-to-p2p-content-declared-legal-in-spain
Jse A, SGAE is a collecting society, not a copyright lobby as such (although it does that too). It is very different from the RIAA.
The 666 Beast got kicked by the power of Jesus
High Respect to Spain Country !
But Spain is part of the European Union, and the ACTA…
well…you know what I want to mean…
This wont stop.
They will only stop going to court and will fight in a different front: CHANGE THE LAW THE WAY I WANT.
@ 12 Mar 15, 2010 at 16:25 by Anonymous: I’m flattered you remember me. I don’t recall stating that this specific case was full of bribery but I should have stated that there was this possibility and I wouldn’t be surprised if it happened. Same for other cases, some of them that had clear problems that could lead to a biased result. I might be influenced by what happens in my country indeed but still, it was an opinion just like all other comments I posted here – since I have no proof I’ll only work with what I can see and depict from the info that I read and that I carry with me from previous reading and personal experiences.
That said, it is indeed an epic win. Although Andres (16) has warned us that the reasoning is not… reasoned… It is a good thing there are people that ‘support’ p2p inside the government.
Some people insist that file sharers are a few idiots that think they can have anything and everything for free but we have seen that file sharing is much more widespread than we think and that people do buy stuff they download. Unfortunately, as it often happens, the few ones that are actually not paying at all become the picture of all file sharers in the world. Oh and we became scapegoats for the companies failures too – blame p2p if you produce crappy stuff that don’t sell.
cheers
Way to go……ha ha
I hope TPB can use this in their case in sweden
Strange how in countries like Sweden and The Netherlands just mentioning how much is lost by linking is enough to find someone guilty. Not looking at if something was actually against the law, just as long as someone can be made responsible. While in a country like Spain a judge just looks at the facts and the law and comes to a logical conclusion.
How stupid judgements sometimes can be in so called more developed countries, can be seen with a case in The Netherlands where someone was held responsible because of the way Google showed search results from his site which only appeared when doing a specific search. And only in Google was it displayed the way the plaintiff (correct word?) didn’t like.
Preemptive….
Now the neominds will appear and say it is still stealing, illegal and the judge was wrong. But as they always state: “The law is the law” so they would have to take some illogical jumps to justify it again (probably ignore the article and copy/paste their last comment).
Andiamo tutti in Spagna !
Well….it’s about time. Spain FTW!!!!!
Spain WIN!
Well….WOW!
I’m officially moving to Spain.
Glad to hear this. :)
EPIC LULZ!! WAY TO GO SPAIN TROLL THEM MAFIAA HARDER!!
A great victory.
will never happen in the US, homeland of the MPAA and RIAA etc etc
Very GoooooOOOOOOOOOOOOOOoooooD!!!
Proof that the Spaniards have an intelligent legal system.
This will never work. A system that walks all over intellectual property rights will never be accepted. Imagine how many of these copyrights are held by American companies. Do you think that they will just stand by while Spain chooses to look the other way while their work is being freely handed out? What pirates dont seem to realize (or is it just want to accept?) is that copyright is an international legal concept.
Oh come on. Is this guy dating the admin of the site? How about when it’s painfully obvious that almost all the said data corresponds to copyrighted files?
Did this guy even look at the evidence? No one is talking about banning P2P as a technology. Only stopping people who use it for illegal things. That’s like saying “alchohol is merely a beverage, and on this basis driving under the infleunce does not put anyone in danger”? By this logic, nothing is illegal. Robbery could simply be redefined as “the reallocation of goods.”
People will always use perfectly legal things (the internet) to commit crimes. The whole point of the law is to separate them from the legitimate users.
Andres, you’re right, I just wanted to make clear SGAE is not a music group, and I didn’t know how to tell its purpose, that’s why I said it’s like the RIAA. Thanks for your post.
Regards.
so kevin, you make maxtapes huh?
the p2p fight is about privacy and not being hunted down for profit(only reason people like the eff stand up for you basement trolls)
you aren’t pioneers of anything
you are consumers who want more and more
if this was truly about sharing and community there wouldn’t be trials
but you capitalists have turned this into a war about money
which you have none
enjoy the L team
TorrentFreak, please remove kel0099′s comment (currently #8) as it is an ad with no bearing on the topic whatsoever. The exact comment has also been posted on several other articles on your site.
Thank you.
Google is filtering many torrents http://www.google.com/search?hl=en&q=food+inc+torrent&aq=f&aqi=&aql=&oq=
In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 12 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org.
In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 1 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org.
In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 2 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org.
how do we stop this before all sites get filtered?
@39
Holy Shit
At least a country with some sanity left in the legal system. WTG Spain!!!
I need a spanish free web hosting…
Some advices? thx
I hope that these corporate parasites will run out of money soon because the next step they are going to take is to try to corrupt some government members in Spain in order to change the law in this country too. They managed to do just that in the US, Australia, in Sweden and in France. They are working hard in Britain while Norway is still resisting.
The bad new for them is that not only these laws are really easily evaded but the corruption is so obvious that the boycott against them is expending.
I know many people boycotting anything entertainment these days not just “musics” and movies but also TV.
if a site can’t have ads or donations how can they operate? I have often wondered how kickasstorrents can stay up and running a site like that can not be cheap
@12 Anonymous
“And I can still remember the idiots like Ninja and RIAAtard etc insisting that there was massive bribery going on in this trial.”
As if the role of corruption is not obvious in most of these cases in which the corporations of entertainment parasites are involved.
It just mean that corruption does not always work although it does most of the time. Obviously.
Obviously a biased judge who’d been bought and possibly bribed by the corporate A$$holes
Oh, wait….
@ Whatever
So the neominds say the judge must be wrong …
Unlike all the trolls who always say the judge was biased, bought, sucking d==k, smoking strong skunk etc etc etc, when the case goes against “filesharing”
Is that all you anti-pirate folk have left – mocking the bribery argument? If so, that’s weak. Why not, instead of the mocking, you explain why Obama backs ACTA.
Also, just wait and see what happens in Spain next – some politician will start talking about changing copyright laws. Changing them in a direction that’s all too familiar – 3 strikes, making ISPs responsible for what goes on on their networks, etc. It’s pretty much a given.
LOL FTW I mean FTL
#16 I disagree, I think the ruling is legally accurate.
You seem to forget that copying copyrighted works (if they are not computer programs) for personal usage is completely lawful in Spain (and many other countries).
So downloading a song or a movie is lawful. Of course, p2p downloaders generally upload some data at same time, but not always, there are leechers that don’t upload any data (this is one of the arguments of the judge).
Even if they upload some data, there are some differences between p2p data uploading and a digital distribution of the copyrighted work. If the downloader disconnects from the p2p network just after he finished the download, obviously he is not “making available the work to the public”. He is just getting the movie, and this is lawful in Spain (and many other countries). This is other of the judge arguments.
There are more arguments in the ruling. The most general argument is that p2p is just an exchange of files between users, and exchanging copyrighted works is lawful in Spain (if they are not computer programs).
It is an intelligent ruling and I seriously doubt it will be rejected at appeal. Remember, downloading is lawful in a lot of countries, copyright holders ALWAYS say p2p data uploading is digital distribution, but this is hightly doubtful. If defendant gets to rebut this idea (p2p data uploading equals digital distribution) he will win the lawsuit.
I can see the conversation now
Vizzini of SGAE: Inconceivable!
Inigo and other file sharers: You keep using that word. I do not think it means what you think it means.
Vizzini’s corporate stooge: Master I think we didn’t put enough into the the budget to bribe (Vizzini whacks minion in the head) sorry, incentives to government and courts to have things in our favour
Vizzini: Inconceivable! When are these people going to learn that Big Business will always be in control of the world! Quickly now, raise the prices on our products so that we can better bribe the courts before the appeal.
Viva Espania!
Good on you Spain, and good on the judge. Now time for a New Zealand judge to make a similar ruling.
“P2P networks, as a mere transmission of data between Internet users, do not violate, in principle, any right protected by Intellectual Property Law.” :^D
No that’s not ALL we have by a long chalk, but funny, isnt it? Every case that goes against “filesharers” involves a bribed, bought judge, sucking corporate d==k. Suddenly a case goes for them whooooooooo, somebody forgot to bribe them…….
It’s to point out how stupidly conspiritorial all these “he was bought/bribed” comments are & how weak THEY are.
Obviously lost on you though “znj”
I love emule, will use it more thanks
!
http://news.bbc.co.uk/panorama/hi/front_page/newsid_8560000/8560996.stm
Good tips for “Filesharers”
@Foo Kin Wong: And what will you be saying when what I predict actually happens? Hmm?
Also, I see no explanation of why Obama backs ACTA in your comment.
Yes, the bribery comments are conspiratorial. But they’re not completely without merit either. I refer again to ACTA.
Yep – and Aliens invaded earth around Area 51. mmmmm
Obama backs ACTA because
“They have cited research that shows intellectual property accounts for 20 percent of U.S. gross domestic product (GDP) and nearly 40 percent of U.S. economic growth. The music sector has seen a major decline in jobs over the decade since Napster made file sharing popular. The industry has contracted to four major record companies and with EMI Music, the smallest major label, in deep financial trouble, there’s a possibility we’ll see more shrinkage. Sony Pictures, the film studio owned by the giant Japanese consumer electronics company, recently announced its second round of layoffs within the past year.”
But who the Feck are you znj to demand that?
moving to spain right now
“Sony Pictures, the film studio owned by the giant Japanese consumer electronics company, recently announced its second round of layoffs within the past year.”
Although I fell sorry for those losing their job at Sony I am sheering at this type of new.
You see we CAN NOT afford corporations of parasites to operate within our society corrupting our governement.
The faster this type of society die the better.
We are boycotting an no freaken unconstitutional and therefore illegal DMCA or ACTA is going to change anything with that.
Sony is on the boycott target list and there is no way for Sony to force consumers to spend money with them.
BOYCOTT SONY!
What Pan or Rama forgets to mention that statement was shot down as false within a day of being mentioned.
@Pan or Rama
And yet, overall Music Market has increased over 25% last year.
And yet, Box Office movie numbers are the highest ever last year.
So, companies are laying off, therefore the guilt is “those damned pirates” but the proffit is only their doing.
Oh, and before I forget, most of the financial market has shrinked, also, automobile market is dying, and there’s an almost absolute stop in the real-estate market.
“Those damned pirates!” they are everywhere.
Please do try a bit harder.
VIVA LA MEXICO :D
Adiamo tutti in Spain :)))
http://www.glamdama.com
The US already put Spain on a black list of copyright offenders.
I smell an invasion.
“@12 Anonymous
“And I can still remember the idiots like Ninja and RIAAtard etc insisting that there was massive bribery going on in this trial.”
As if the role of corruption is not obvious in most of these cases in which the corporations of entertainment parasites are involved.
It just mean that corruption does not always work although it does most of the time. Obviously.”
I made the original comment BTW.
If it’s so “obvious” please provide evidence of in any of these cases of:
-Judges being bribed OR
-Attempts being made to curry favour
with a Judge through social interactions, paid gifts or similar swuch activites. (which is border line: it can be perfectly legal in which case deos not fit the definition of corruption.)
If what you’re saying is true then you’d expect Judges to report the attempted corruption – if they are not in the pockets of the plainiffs then why would they consistently not report this supposed corruption exactly?
And BTW you are making as much sense as Ninja RIAAtard etc. – there has not been a plethora of cases that have been decided in favour of interests reperesenting content owners, much the opposite in fact, so how do you figure corruption occurs in most cases?
It is not obvious to me that corruption occurs “most of the time” – aside from the lack of this corruption being revealed (which is granted, not a measure of it being there) there is the rather compelling evidence that most court cases are not going in the favour of copyright enforcement interests. If there is corruption all the time by these industries how do you explain this?
LFG Spain 10 heroic
“The outcome of this case is such bad news for SGAE it’s expected they will appeal the decision. Or get the law changed. Or both.”
What a f*ck*ng load of b*ll sh*t!! It pisses me off beyond belief!! What do those “anti-piracy” dogs think they are? God?
How about COUNTER-SUING them every time they file a case based on phony evidence and then lose it? Sue them for wasting people’s time and money.
Is this real? Did the judge actually accurately and fairly portray both the law and the subjects in question? I’m absolutely flabbergasted.
I hope he gets a boatload of flowers sent to his home.
In times of a global financial crisis, where the source of the problem was made by greedy and moneyloving people.
Finally comes the time when “they” will have to learn that students would never be able to educate themselves or get new jobs, without the free and unrestricted access to learn fully functional software.
(We are not all billionaires !!)
New laws, restrictions and “3 strike rules” will make it possible only for the very rich people to get the better jobs.
It is logically true that p2p networks and ISPs are merely conduits for the transmission of data, just like telephone networks are conduits for phone calls.
A phone caller who talks about subversion or terrorism may be criminally liable but not the phone company. The law does not require to listen and monitor such activities but authorities can get a subpoena to tap phone lines.
ISPs should not be allowed to snoop on subscribers but if there is an urgent need, a subpoena should be sought by law enforcement.
““The outcome of this case is such bad news for SGAE it’s expected they will appeal the decision. Or get the law changed. Or both.”
What a f*ck*ng load of b*ll sh*t!! It pisses me off beyond belief!! What do those “anti-piracy” dogs think they are? God?”
Your juvenile outbursts make you look stupid – are you getting red in the face and spluttering as well?
“Finally comes the time when “they” will have to learn that students would never be able to educate themselves or get new jobs, without the free and unrestricted access to learn fully functional software.
(We are not all billionaires !!)”
Get a job and stop making yourself a hapless victim by using ridiculous exaggerations. Billionaires indeed.
TorrentFreak news April 2006:
The Spanish police made 15 p2p related arrests today, and closed down several BitTorrent, eMule and Edonkey sites. The victims are accused of facilitating “copyright infringement”. Today’s arrests are the result of a large scale investigation by several Spanish “copyright protection” organizations that started in October 2005
http://torrentfreak.com/spanish-p2p-raids/
#52 @lastbastard
You are completely misreading the law. The ruling is not intelligent, it is one of the worst drafted copyright-related judgements that I have read in ages. If you want to have a look at an intelligent and well-drafted ruling that also got it right, look at Roadshow v iiNet in Australia:
http://www.technollama.co.uk/landmark-isp-liability-case-decided-in-australia
That is a ruling that is favourable to the cause of most people who visit this site, but also is appeal-proof.
The case against elrincondejesus is not a personal copy case, it is a case about making the work available to the public. I think that the right ruling with regards to linking was achieved, namely, that linking per se does not constitute making the work available to the public. However, the judge completely overtstepped his mandate and went on to make half-arsed legally unsound claims about P2P in general, and this is where he has opened himself to the ruling being lost in appeal.
By the way, for everyone thinking that this changes things in Spain, it does not. This is a lower court in Barcelona, so it is not binding to the rest of Spanish courts, the Civil Law system does not work like that.
“But who the Feck are you znj to demand that?”
Ah, yes, super argumenting technique. I’m not “demanding” anything. But if you want to refute my point, you won’t do that by ignoring it.
I’m giving examples of laws being put together that are, in a word, crazy. They goes against basic principles of human rights, they give the media industry more powers that those fighting *real* crimes (like physical theft, murder, etc) have.
Thank you for posting that paragraph, it actually doesn’t sound crazy. Though I see it has already been refuted quite well. So I’ll put it down as one-sided, as not taking into account the whole picture in an attempt push an agenda.
How about I give you the more plausible reason of why Obama backs ACTA: Because his election campaign was funded (at least in part) by the media industry. Is this bribery? Well, not if you take the word literally. It is, however, the industry grooming politicians to create laws in their favor.
Another example: When did Lord Mandelson start his anti-piracy shtick in the UK? When he had a meeting with an exec from the media industry. Surely Lord Mandelson only became anti-pirate because he had seen the light, right?
Example three: The TBP case. Judges being appointed to a case is supposed to be random. But here they carefully selected a judge. One that is in the same organizations as the lawyers of the prosecution! If that’s not bias I don’t know what is. But then the judge is declared not biased!
Is bribery everywhere? Clearly not. Is it at play? Yes it is, and you won’t convince me otherwise. The only argument you have is when you take the word literally. But there are ways to influence those in power (politicians, judges) that are not a direct bribe like giving them a brown envelope.
In the end, I repeat again: What will you be saying when what I predict actually happens (and by that I mean, what will you be saying when Spain gets their own version of Lord Mandelson)?
\o/ Wohooo!
@ 37 Mar 15, 2010 at 18:35 by neostyles
” This will never work. A system that walks all over intellectual property rights will never be accepted. Imagine how many of these copyrights are held by American companies. Do you think that they will just stand by while Spain chooses to look the other way while their work is being freely handed out?”
seems to me its working jussssst fine ;) and what they gonna do – invade Spain? lmfao
wait a mo does Spain have any oil reserves?
well knock me down with a chorizo….i wonder how long that will last ? Good way to go – ole.
the judge is corrupt.
just wondering – what are you lot going to share when all the companies who invest in music and film are bankrupt?
#79 @Andres
Where the hell are your arguments?
The judge cited several cases that clearly they are not “making the work available to the public”. Where is your rebuttal to those cases?
I hope they get their law, and then I will be only too happy to watch them try to shut down the site using the new law (which won’t apply because the site will have existed prior to the new law, and hence exempt from it, just like the AntiWar guy outside the London Politician Castle).
@59 If you are relying on the BBC and that useless IT consultant they used for your security measures, maybe you shouldnt be file-sharinign in the first place.
Education comes first, kids!
Soon Spain will be full of Brits.
Oh, hang on, it is already ;)
Love Spain :)
@Bonnie Clyde…
“just wondering – what are you lot going to share when all the companies who invest in music and film are bankrupt?”
Whatever art artists wish to share with the world.
After all, they can always make money through commercial use of their work, through merchandising, etc. and even file-sharers purchase media that they can otherwise download for free.
The middle-men (corporations) won’t gain as much but the artists and creators can still earn a decent amount of money from their work if they’re innovative.
Hell, maybe we’ll spend our time sharing educational information instead of the commercial cookie-cutter crap that’s churned out by the big labels – this would probably be intellectually beneficial to most people too!
@ #14 (Kevin)
We gave you dictionaries but it didn’t help you learn to spell.
“Therefore, if an individual uses P2P networks like eDonkey or BitTorrent to obtain copyright material for non-profit reasons, the act is completely legal.”
That is not so. The judge declared that linking for non-profit reasons is legal. The judge did not rule on obtaining copyright material for non-profit reasons, which i’m sure he would declare ilegal.
sweet, i know where my next seedbox will be ;)
brb moving to spain
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