Preliminary injunctions against two file-sharing portals have been overturned, paving the way for a re-opening. The sites’ lawyers have proven that hard drive evidence collected during a controversial raid against the sites’ admin is worthless, and the anti-piracy group involved has been fined by the court for acting in bad faith.
Earlier this year, TorrentFreak reported on computer science student, Juan Jose Carrasco Colonel. The 26 year-old resident of Bonar, Spain, ran two eD2K file-sharing link sites known as Elitelmula and Etmusica. Both were closed some months ago after action by music and anti-piracy group SGAE led to a court order being served on the sites’ host.
Then in May, Juan had a home visit from individuals who said they were from the court. Handing Juan documentation he didn’t understand, they gave the impression that they had a warrant to enter his home and make an inspection of his computers and hard drives.
In fact, it turned out one was a lawyer for SGAE, the second a SGAE computer expert and another a clerk, who had come looking for the stats from Elitemula and Etmusica, which supposedly reflected the downloads of music made via links on those sites between September and December 2007.
They searched the entire house, going through both Juan’s and family members’ possessions. Finally Juan managed to get lawyer David Bravo on the telephone who, along with Javier de la Cueva, were the legal team for P2P developer Pablo Soto. Bravo confirmed that the supposed warrant did not authorize the individuals to be in Juan’s house and ordered them to leave.
TorrentFreak has been in contact with Javier de la Cueva, who was able to give us an interesting update on the case.
A Spanish court, after initially submitting to requests by SGAE that both Etmusica and Elitemula should be closed and hard drives seized for evidence, has now revoked the decision after demands by Juan’s lawyers. The hard drive evidence was dismissed and both sites can now be reopened.
“The reason for reopening the websites is that a hyperlink, per se, does not violate intellectual property law,” Javier de la Cueva told TorrentFreak.
On the dismissal of the hard drive ‘evidence’, Javier explained that this was due to their proof that it is impossible for the site’s users’ sharing statistics to be stored in it.
“As I said in the hearing: how can it be that an interchange between a Polish and an
Argentinian would be registered in [Juan's] hard disk if not even a single bit passes through my client’s website? I explained to the judge how P2P networks function and he was convinced that this evidence is impossible and useless, so he annulled the previous resolution held by the same court.”
Javier also explained that it’s important to note that SGAE requested injunctions to be taken out on Etmusic and Elitemula without summoning their client.
“When this happens and injunctions are adopted, the defendant should have the opportunity of opposition, and this is what we have won,” he told us.
Furthermore, SGAE ‘forgot’ to tell the court that earlier criminal proceedings brought by PROMUSICAE to achieve preliminary injunctions against both sites, had already been dismissed.
Due to this unfortunate bout of amnesia, SGAE has been fined 500 Euros for ‘mala fides’ (operating in bad faith) as it was concluded that there was an intention to avoid the defendants right to a defense.