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.