Final Ruling Confirms ‘Pirate’ Sites Act Lawfully in Spain

Lawyers defending a file-sharing site say a new legal victory provides final confirmation that sites providing links to copyright works act lawfully in Spain. In a complaint filed during 2009, SGAE claimed that Index-web.com violated its rights but in yet another blow to the music rights group and Spain's Ley Sinde anti-filesharing law, this week a court disagreed.

Several rulings over the past couple of years have indicated that sites providing mere links to copyright works act legally under Spanish law. One key case, however, threw uncertainty into the mix earlier this year.

The case dates back to May 2009, when music rights group SGAE (Sociedad General de Autores y Editores) filed a complaint against Jesus Guerra, the operator of file-sharing link site Elrincondejesus.com. SGAE claimed the site abused the copyrights of its members.

At full trial Judge Raul N. García Orejudo ruled that offering an index of links and/or linking to copyright material is not the same as distribution, noting that under current Spanish law there is nothing which prohibits such sites from operating.

In March this year, however, an SGAE appeal resulted in Elrincondejesus.com being subjected to a fine of 3,587 euros by the Provincial Court of Barcelona.

In addition to P2P links, Elrincondejesus had offered links to files held on sites such as MegaUpload and RapidShare. The Court said that by offering these direct links Elrincondejesus had made copyright works “publicly available”, even though the site had not uploaded them to the Internet. This, the Court concluded, was a breach of SGAE’s rights.

All this must’ve seemed like very bad news for index-web.com, a site with the same structure as Elrincondejesus that had been fighting an almost identical case against SGAE dating back to 2009. After initially being cleared of wrong-doing at a May 2010 hearing, following an SGAE appeal Index-web.com would now have to face the Provincial Court in Barcelona, the same court that had found Elrincondejesus liable in March.

This month that case went ahead, but rather than SGAE coming out on top again as it had done against Elrincondejesus, the pendulum swung the other way. The Provincial Court, with the same judges presiding as in the previous case, decided that links – whether to material on P2P networks or cyberlocker-type services – do not infringe intellectual property rights.

Lawyers for Index-web.com, Javier de la Cueva and David Bravo, say the ruling is significant and represents the “..first final decision in civil proceedings issued in our country stating that pages of links to P2P sites or direct downloads do not infringe any intellectual property rights.”

Cueva and Bravo say the ruling from the influential Barcelona court will become the legal standard for interpreting Spain’s intellectual property laws in future, and will have implications for Ley Sinde, the Spanish government’s troubled anti-filesharing legislation.

Following the ruling in favor of Index-web.com, Cueva and Bravo – who also represent Elrincondejesus – have filed an appeal on the site’s behalf, hoping to overturn the 3,587 euro fine handed down in March.

What remains to be seen now is how the US government will react. As part of Operation in Our Sites, US authorities previously seized the domain name of sports links site RojaDirecta on the basis that it operates illegally. The Provincial Court ruling appears to put the legal status of RojaDirecta beyond doubt.

Nevertheless, just this week federal prosecutors urged a judge not to return the site’s domain following a request by Puerto 80, the company behind Rojadirecta.

“Returning the Rojadirecta domain names at this time would provide Puerto 80 with the very tools it used to commit the crimes the government has alleged it engaged in prior to the seizure,” the government said in its filing.

Since it is committing the same ‘crimes’ as RojaDirecta, will Index-web.com have its domain seized by the US too?

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