Judge Rules P2P Legal, Sites To Be Presumed Innocent
Written by enigmax on July 07, 2009After Spain virtually ruled out imposing a “3-strikes” regime for illicit file-sharers, the entertainment industries said they would target 200 BitTorrent sites instead. Now a judge has decided that sharing between users for no profit via P2P doesn’t breach copyright laws and sites should be presumed innocent until proved otherwise.
The entertainment industries in Spain must be progressively tearing their hair out in recent months as they experience setback after setback. Most recently the ‘Coalition of Creators and Content Industries’ – which includes the likes of Promusicae and SGAE – had demanded a “3-strikes” regime for illicit file-sharers, but after they failed to provide viable and attractive authorized alternatives, ISPs lost patience and called off government-mandated talks.
The Coalition quickly backtracked, suggesting they would accept some type of throttling instead, but that fell largely on deaf ears too. Then new Coalition president Aldo Olcese said that the solution would be to go after the country’s 200 torrent sites instead, but this could also prove problematic. Time and again Spanish courts have ruled that sites that link to infringing content are not illegal, providing profits aren’t made directly from any infringement.
But of course, wealthy operations like SGAE aren’t put off by such rulings and instead go after eDonkey and BitTorrent sites privately, often demanding that they are forced to close via injunction in advance of a full court hearing to assess their legality.
One such case involves the eD2K link site elrincondejesus.com. On May 13th the site received a complaint from none other than every Spanish sharing site’s nemesis, SGAE. Alleging Elrincondejesus “abused” its members copyrights, the site’s owner was summoned to appear in court on June 5th.
At this hearing various things would be discussed, but SGAE hoped to get an early decision to suspend the operations of Elrincondejesus immediately, in advance of the full hearing which would happen at a later date.
On his site, the owner commented: “As you know Elrincondejesus.com never had advertising (or has now). 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.”
There would be a month long wait for the court’s decision but today it came.
The judge dismissed SGAE’s request for an immediate shutdown of Elrincondejesus.
“P2P networks, as a mere transmission of data between Internet users, do not violate, in principle, any right protected by Intellectual Property Law,” said Raul N. García Orejudo, a judge in Barcelona. Although some activities are barred, those do not concern P2P he said, noting that there has to be a presumption of innocence.
Speaking with Elmundo.es, attorney Carlos Almeida-Sanchez said: “This is the first time a court clearly states that P2P itself does not violate any rights.”
On possible infringements of the Intellectual Property Act, the court said:
“Adding a work or video recording to Emule, that has previously been converted to a compatible computer file, is not an act of reproduction,” adding that “Copying is not a profitable use, or collective use [such as broadcasting in a store], as these two terms refer to the subsequent use made of the work once downloaded, after the copy.”
Additionally, the Intellectual Property Act describes distribution as needing something tangible, as in distribution via a website for example, which in this case (as it’s P2P) does not exist.
However, the court order recognizes the possibility that public distribution may have occurred but this is difficult to prove, since any sharing could’ve taken place with just one person.
The full trial will take place at a later date.
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83 Responses
*wants to move to spain*
Time to learn Spainish.
:D
buena historia bro
i’m glad there’s one country out there that’s thinking straight.
We welcome any pirate with no discrimination.
Todos son bienvenidos.
Spain doesn’t seem all that safe when they can simply e-mail you and request you to come to court and spend money to defend your self. I guess it’s all about staying under the radar or sharing material that isn’t being defended well enough.
Shit yeah! If only USA would follow suite and do the same! Vive P2P!
Spain here i come!!
OMG OMG!!
This is a nothing story. Of course they’re legal, ffs. They are a technology that distributes content. Nothing more, nothing less. The sites are what this is all about.
what the fuck? how can sharing copyrighted files that people spent time and money creating be legal? this legal system is fucked up! P2P for copyrighted files should be banned immediately.
Is copyright breached for nonprofit? or even if you loan or lend someone something?
all very grey areas…
@geez do you go after google? or Forums? or BLoggers? i use http://www.epictorrents.com for example, and i dont see that there is much can be done with a site like that>
road trip to spain anyone?
So… Spain is a heaven for pirates! Woo hoo!
vete a la verga douchebaggerinos
#4 & #3: might do the same =)
Muy bien!!!
So why’s this Judge using common sense to interpret copyright law? Doesn’t he understand how it is things are supposed to work around here? Is he new or something?
and that sound you hear, that sucking sound, is all the torrent trackers and sites moving to SPAIN!
SPAIN FTW!
“Adding a work or video recording to Emule, that has previously been converted to a compatible computer file, is not an act of reproduction,” adding that “Copying is not a profitable use, or collective use [such as broadcasting in a store], as these two terms refer to the subsequent use made of the work once downloaded, after the copy.”
our point exactly too bad this ruling has no meaning outside of spain
pretty funny, if you say something contrary to a view held by the editors, they put your name on moderation
pretty mature
@24 Ira Dumas
It’s not just one judge, you know. It is all the judges in Spain.
Pirates 1; RIAA 10093… Don’t give up! We’re catching up! LULZ!
Impossible! A judge using common sense and defending the principle of being innocent until proven guilty.
Guess they haven’t got the chance to buy him off or threaten him into compliance yet.
What’s the name of the judge, Raúl N. García Orejudo? We should show our support for him ruling in this way! Judges should know that if they defend our freedoms they have overwhelming support of the public, internationally.
Show him that we care and encourage him so he isn’t compelled to back-paddle under the pressure of copyright gangsters! And there will be pressure, be sure about that. So who is going to dig up his address and send first letter/e-mail? ;)
People get sick of people just complaining about corrupt judges, we have to encourage and support the honest ones too!
Ay, mui bien..
:)) Hell, I really wanna move to Spain. Other than filesharing being legal, they’ve got super hot girls there too.
Soy de la tierra del frío, me demuestro que a sus tornos y tortilla se coloca.
I haven’t practiced my Spanish in like2 years, but i think this will let me survive there for a good year.
Holy crap i butchered the Spanish language there.
Soy pirata, Donde están sus niñas y tortillas.
Much better..
Yo quiero unas tortillas
Well… lets all rush to Spain.
ESPANOL!!!!
Fuck yeah, why aren’t US judges this intelligent?
I <3 Spain.
i applaud the judge who, finally, for the good of the people, (and in the name of fairness and law) made a common fuckin sense decision about non-profit piracy
resonated mind is probably having a tantrum lol.
Estoy aquí, ahora ¿dónde están las mujeres y la sorprendentemente rápida nivel nacional un 100Mbit líneas para que pueda descargar películas? <– only spanish you need
Looking from France, Spain seems so ahead. Kudos guys, you’re lucky for not being infested with corrupt majors there. Just put an end to bullfighting and it’s gonna be nearly perfect.
Lol @ james
Y tambien un isp de 6mbps que no cobra mas de $25 al mes.
Anyone know where I can find a good Spanish dictionary?
So this is not a done deal then? There is still a trial, the possibility of an appeal, etc?
I love you guys at torrent freak, but sometimes I think your headlines jump to conclusions.
its about time a gov stands up against this evil empire the RIAA…
Gee I sure wish the US could take a page out of Spain’s book.
Well this is on the edonkey network, not really torrent…
how about moving tpb and all other torrent sites to spain :>?
super one country that is on the right way to the furture!!!
Spain. Pirate H(e)aven?
Must. Learn. Spanish.
Hablas en Espanol?
Yeah I’m a spanish citizen. Don’t forget we pay taxes on all blank media, too. F*ck you SGAE. Mi cago en tu puta madre. OLE!!!!
Spanish sucks, learn Portuguese instead.
LG Dacom in South Korea is now blocking bittorrents.ro
Just because they said Spain doesn’t mean that people in Spain don’t speak English. There are English files on ed2k from Spain also since the network is worldwide and many files are file named in multiple languages.
It’s days like this that make me feel glad to be living in Spain!
don’t be fool by this .
to run a torrent tracker , you need a lot of bandwidth that mean you need a lot money to support it .
as long as the sites found with ads or donation , that sites will be easy target.
this is indeed good news, although call my cynical, but to me it seems like this could actually be economically motivated, as if they buy the propaganda spread by the anti piracy outfits, torrent sites are earning vast proffits, so they may be hoping to tap into some of that by encouraging sites to set up as businesses like mininova so they can earn from taxation, as well as create new business for Spanish data centres who will presumably be suffering as many web based companies seem to be going under or cutting back on spending massively
but its still progress, lets just hope another judge higher up cant be paid off to adopt a more anti-filesharing view
up yours kevin they charge to much for their product to start with
One small step for a website, a giant leap for file-sharing.
welcome to the jungle, kevin :)
ooops.. did the Anti-Copyright Lobby forget to send out a cheque?
Your first summary paragraph, at the end should be “PROVEN otherwise” not proved.
sorry, I’m just a grammar NAZI
Spain is the best !
they are afraid that these fledgling pirate parties JUST might get more power and force these issues solved properly
Long live king of Spain :) !
I was on vacations to Catalonia, it was really cool.
@50 cola, most of them don’t care to speak anything other than Spanish, especially outside the big cities.
My take on this… I guess this judge got it’s SGAE membership revoked so now his pi55ed at them.
Most of the people in any judicial system are part of at least one anti-copyright-abuse organizations.
Take a look at TPB’s trial… the judge was dirty, so was the cu.nt that was supposed to investigate him and so were a lot others who had been involved in that trial.
Of course, each of them having their own agenda with its “benefits” of being part of such organizations.
That’s why it’s so hard to get a fair ruling in cases such as these.
Spain has the most honest copyright law in the world: you can use works for free, but only if you not making profits on it. Viva Espana!
Ole!
Absurd. It seems like the US is the only countries in the world that respect the content providers. Hell, every other country simply fails to recognize that they exist and seemingly pretends that entertainment simply falls out of the sky into peoples greedy hands and that the fact that you are avoiding payment via the internet rather than stealing a physical version of that product somehow makes it okay.
Just because you aren’t earning money doesn’t mean the copyright holder isn’t losing any. It’s truly beyond me how any with a brain could say that illegal P2P doesn’t violate copyright laws. Copyright places exclusive control of distribution in the hands of the respective holder and I doubt that someone who invensted massive amounts of money and work in something envisioned their work being handed out with no profit for them.
WIN!
Forget the idiot countries like sweden and the netherlands
GO SPAIN!!
In Spain you won’t get a decent upload speed. Last year the standard was 320kpbs, while this year you can get up to 1Mbps upload.
I’m going to spain this summer with some friends, and i will bring my laptop, and seed 24/7 in two weeks
Those lucky bastards! I envy them :D
@.neo.styles|nvDX
But the judgement doesn’t legitimise unauthorised copying, does it? To me it reads that the service providers shouldn’t be held accountable because they’re not seen to be infringing on copyrights.
<“P2P networks, as a mere transmission of data between Internet users, do not violate, in principle, any right protected by Intellectual Property Law”
Makes sense, don’t you agree?
Apparently you don’t understand this, but so-called peer-to-peer services are not inherently illegal. How an end-user chooses to use them might be though, so get your evidence together and go after them instead.
“the court order recognizes the possibility that public distribution may have occurred but this is difficult to prove”
Looks like the law may be unworkable then, doesn’t it? Quick, somebody call neo a waaaaaaaambulance before it cuts itself…
Legal P2P exists, but it is tiny compared to illegal P2P. Its absurd to think presume over 200 torrent sites innocent, given the prevalance of illegal P2P. P2P has primarily becomes a means to circumvent paying for things. Determining whether one of those torrent sites is legal or not isn’t rocket science. Most torrent sites have sections for tv shows, games, appls, etc. And as soon as you can find those, the torrent site is basically illegal.
Evidently, I did. The fact that I said “illegal P2P” and not just “P2P” signifies that I realize that there are differences and that not all P2P is the same.
You can’t exonerate the people providing the services completely either. TPB encouraged people to upload copyrighted torrents and their tracks were comprised of probabaly 99% copyrighted material. The only possible way someone could use that kind of service is to violate copyright.
@.neo.styles|ndVX
How cute, you changed your name. Anyway.
Copyright needs to change. Here’s why.
Once upon a time, the printing press was the most advanced means of distributing information. Copyright law was created in Europe in the 18th century in order to give authors some say in how their works got printed, among other reasons. As the public did not have access to effective distribution methods, copyright law at the time did not hamper or restrict the public in any way; it only restricted publishers by requiring them to obtain permission to distribute a work. The public recieved a gain (increase in creativity) in exchange for the removal of certain rights they couldn’t really use anyway. Pretty clear benefit for the public there.
Over the last century, copyright law has been left behind in the dust. Technological innovations, from player pianos to cassette tapes and now the Internet, have diminished the gap between public and publisher/distributor. In the digital age, the public is the distributor; with just a few mouse clicks someone can make their material available to the entire world, without the need to deal with a professional distributor. This is a massive improvement when compared to the distribution of content being controlled by a select group of companies and corporations, as has been the norm for some time. These groups- the record labels, the movie studios, the publishing companies- have all done a good job of commercializing art. Turning it into a product to be purchased.
Modern technology is helping to undo that commercialization. Control over the distribution of art is no longer held only by the companies; it is now in the hands of the public. For a hundred years copyright law has seen the introduction of new technologies that, for better or worse, help circumvent it. Copyright law’s initial response is not to adapt to these technologies; it is to place more and more restrictions on the public, on the people that copyright law was designed to favor. Laws like the DMCA, and the constantly increasing terms of copyright (the original life of a copyright was 14 years, renewable for another 14; today, copyrights can survive for over a century), have transformed copyright law from a series of artificial rights that favor the public, and social progress at large, into a series of artificial rights that favor the companies and their profits.
If present-day, obsolete copyright law is allowed to continue existing, the result will be greater and greater restrictions on the public in the name of profits for select companies. Let’s imagine that the next huge technological innovation is worldwide Internet access; any computer, anywhere, can wirelessly access the Internet. The entertainment industry’s idea of “three strikes” is obviously obsolete here; there are no longer ISPs to disconnect from. Their best bet, in order to control the use of their content, is to have access to everyone’s computers and be able to dictate what is used, how it’s used, and when it’s used. (This could actually happen.) If such a thing were to become reality, you would have no privacy on your computer and on the Internet… all in the name of profits for the companies. And it can only get worse from there.
When a p2p user downloads copyrighted material, he is contributing to the fight against outdated copyright, whether he knows it or not. The more people download, the more pressure will be on the law to change. Laws reflect human morality, natural rights and true justice; it should never be the other way around. The future looks very good indeed for p2p: despite anti-piracy efforts by the dying industries, people are still sharing, even more so than before. We have won, and we will continue to win.
@ 73 Jul 08, 2009 at 23:30 by 4nd
Can you please give permission to quote that answer? It is that GOOD…
@neo.styles
Your reasoning falls to the ground with the assumption that published art products are “STILL” property of the creator.
From the moment they are published, they belong to everyone, they are: “CULTURE”. Wether that was the intention of the creator or not.
Granted, they own the rights to commercialization. But, P2P sharing, is NOT commerce. More, it can increase commerce, sending the creator to higher revenues.
The principle of one download = Lost sale, is a complete and absurd falacy. One download = One FREE Advertisment. So, instead of “hurting” creators, each and every download is actualy promoting their works for FREE. When, and IF, creators learn to capitalize on that advertisment, they’ll never again go back to the “Dark Ages” of being “Slaves” to the distributors they contracted with.
Right now, content producers, under their contracts with the distributors, publishers, managers, etc… Receive (sometimes they don’t) a very small percentage of the sales of their products. most of the times, they receive as excuse, that the reason they receive so small ammounts is because their stuff is being copied on the internet. That only fools a ignorant fool, so, nothing is really lost there. A clever, elucidated creator, knows that if a product is being copied, it’s because it has fans, and fans, BUY. Doesn’t matter what, doesn’t matter the price, if what you do is GOOD, and people love it enough to share it massively, many of them will buy…
So, instead of blamming who’s promoting you for FREE, who’s making you a STAR, re-examine your contracts, and maybe do a thorough accountability of those contracters…
Bottom line, we share, because we care. Be happy if we share your stuff. Sharers are creators best and sometimes, ONLY friends.
@FatGiant
Everyone and anyone has permission to quote or repost or whatever anything I say. :)
@.neo.styles|nvDX
Sorry, neo, but peer-to-peer technology just isn’t illegal with respect to issues of copyright infringement. Categories are not illegal at all. There is legally distributable television, movies, music, software, magazine, and so on that can utilise those categories. Categorisation simply allows for a multitude of content to be appropriately categorised for ease of use by the end-users. There’s nothing illegal about that. How would you go about categorising different types of media if you yourself were in the business of operating a service that allowed for users to distribute content through the use of modern I.T.?
I understand your position. I can see how many of these services operate with respect to copyright with their oftentimes blatant promotion of the availiability of copyrighted works through use of their services, and that many appear to do it in the interest of making money for themselves through advertisements, subscription packages, donations … whatever, but still I think that if you are to read copyright law objectively with regards the act of unauthorised copying, distribution and broadcast, that actually it’s not actually the service providers who are guilty of those things, but the end-users. Maybe my interpretation is wrong, I don’t know, I’m not an expert of international copyright, but apparently this judge here also sees it this way.
You should probably stop using the term “P2P” because I think you’re confusing what it actually is, and file-sharing is by no means limited to what you may define as ‘P2P technology’, such as BitTorrent protocol. P2P means many things and encompasses many differing protocols. For you to suggest P2P technology is largely illegal is ridiculous. This TorrentFreak site is P2P technology of sorts based on the HTTP protocol; You’re a peer, I’m a peer; and we’re exchanging information through the intermediary service hosted at torrentfreak.com. Now if I were to digitise a copyright recording without authorisation and publish it here …
101010111010100010010010001000100101001
… are you going to start attacking the TorrentFreak to have it police the users of it’s service to remove that content or have the service shut down to appease your interests? Sure, TorrentFreak could oblige and remove that data, but what if a large number of people start doing the same? Is it to become the responsibility of TorrentFreak to protect your interests even though TorrentFreak isn’t actually the one infringing on the copyrights? I don’t believe that would be fair. It would be ME that you should be going after as I’m the one breaking the law.
If you’re unhappy with services being able to defend themselves against your desire that they shoulder the responsibility of protecting your content, then I think you probably need to go off and write some new law that specifically expresses such. Then I guess you can come down hard on all those evil services online that people can use to infringe copyright, which is pretty much everything, because that’s what teh internets actually is. Apparently you just don’t know it yet. Stop looking at it as being just some narrowly (and incorrectly) defined “P2P” thing that if you can kill will make all your problems go away. It isn’t, and they won’t.
I don’t see where The Pirate Bay “encouraged people to upload copyrighted torrents” at all. Can you give me a specific example? I see that enjoyed that people liked to use their service, and that they took the position that based on their interpretation of Swedish copyright law that they were not liable to be held responsible as a service provider for how end-users chose to use their service. If end-users use the service to distribute copyrighted content, then it’s the end-user’s reponsibility to ensure they act in accordance with law or, if caught, pay the price for not doing so. If The Pirate Bay’s “tracks” (?) “were comprised of probabaly 99% copyrighted material then I suggest you go after those that are distributing those tracks, which is not The Pirate Bay, but the end-users oftentimes using their home connections and personal computers to distribute the content.
And finally; “The only possible way someone could use that kind of service is to violate copyright.” Give over, that’s a ridiculous thing to say. Here’s a very possible way to use it: I use it to advertise and make available a recording of me farting into a microphone. There you go. Is that against the law (probably… somewhere)? It’s quite possible for people to use the service for perfectly legitimate means.
Yours sincerely.
@65
“It’s truly beyond me how any with a brain could say that illegal P2P doesn’t violate copyright laws.”
Correction: P2P is LEGAL in Spain and the Spanish Law indeed says that P2P DOESN’T violate copyright laws.
@65
When you hear a song on the radio, do you slam your hands over your ears and cry out “NO THE COPYRIGHT LAWS… AAHHH”. Shut the hell up! The only difference between sharing and radio is the fact that you can control what you hear. And the best thing about it is you can discover new music and determine if there’s something out there that justifies buying an entire CD. Bit torrent will eventually put an end to all those “one-hit wonders” I’ve spent way too much friggin money on already. Talk about stealing!
Congratulations Spain!!
65–>Absurd. It seems like the US is the only countries in the world that respect the content providers.
———
LOL!!
Sounds more real thus:
Absurd. It seems like the USA is the only country in the world that has outdated, bizarre and unjust copyright laws which ONLY favor to the content providers (middlemen) and not to the creators of content (the artists).
Of course they are legal…it is the people who download that break the law. If I got banned and couldn’t get to my site www slikbudget dot com I would lose a ton of cash everyday.
@46 El cabron
“Yeah I’m a spanish citizen. Don’t forget we pay taxes on all blank media, too.”
Not if you buy them from the many TODO 100 shops(mostly run by chinese people), €6.50 for 25 DVDs isn’t bad :-))
I believe that holding the sites liable for what the users are doing would be the equivalent of holding a car rental business responsible for someone selling drugs out of a car that they got from said business. The car rental company did nothing but supply access to a vehicle. What the user did with it is not in their control.
Cabron Cabron
I always see you in the park
you’re always wearing dodger blue….
http://www.entertane.com – the easiest site for torrents (movies, music, software, games, xxx) – faster, simpler – and you can search all your favorite torrent sites. No registration needed.
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