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.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

This time SGAE targeted Agujero.com, a site which amongst other things offers links to files found on various P2P networks. Defended by lawyers David Bravo and Javier de la Cueva, Agujero.com is protesting its innocence using the same successful defense employed earlier by P2P site Sharemula. However, the increasingly deaf SGAE believes otherwise, claiming that the site operates illegally.

“The entertainment industry has tried to criminalize websites linking to P2P,” Javier de la Cueva told TorrentFreak. “After four years, it seems they have given up with criminal proceedings as it is clear it is not a crime because a link is not a copy nor is it public communication. It is just metadata, data about data. Now they [SGAE] have begun civil claims.”

SGAE told the court that Augujero’s continued operation was so serious that it required an immediate injunction to close it down. In fact, it further insisted that the urgency of the case meant that it was not even necessary for the court to hear the defendant’s side of the story. SGAE insisted that they “had long remained passive” in taking action against Agujero, having been aware of the site’s operations since 2007. Now, in 2009, suddenly everything has become so urgent that they don’t want the site to have a defense in the face of an application for an injunction.

Thankfully the court disagreed with this reasoning and allowed an interim hearing on May 5th 2009, to be attended by both sides.

During the hearing, lawyers for SGAE claimed that Agujero.com infringed the copyright of its members. For the defense, lawyer Javier de la Cueva argued that the site did not, since it only carries links to material hosted elsewhere, a position already declared legal under Spanish law in previous cases. An expert presented by the defense confirmed that the site carried only links and that the only material actually hosted by Agujero is ‘copyleft’ material.

The judge noted that closing the site in advance of a full hearing “might cause irreparable prejudice to the defendant,” and therefore denied SGAE’s application to have the site closed at this stage.

“In the end it could be considered a legal activity,” Javier told TorrentFreak.

To be continued….

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

According to Spanish police, the site caused the entertainment industries 535,000 euros in losses and made 30,000 euros in profits. Unfortunately the authorities didn’t have the benefit of foresight, which would’ve given them an understanding of how Spanish law would deal with a site that links to copyright infringing material.

In September 2008, a Spanish court ruled that providing links to copyrighted material is not a crime. The Provincial Court of Madrid ruled that Sharemula.com, a site offering eDonkey links to movies, music, software and games, did not break the law. Furthermore, the court’s decision was final and could not be appealed.

If the ruling in the Sharemula case holds up, this means that TodoTorrente was not breaking the law either. Lawyer David Bravo who was involved in the TodoTorrente case, has contacted TorrentFreak with an update on the TodoTorrente situation. David notes that the coverage of the TodoTorrente raids and arrests had a great impact in the Spanish media, and further afield.

Of particular interest was a gloating editorial which published in Portal Latino, which claimed that TodoTorrente wasn’t “kids playing on a network” but an “illegal business”, and celebrated the closure. David explains that the media uproar this caused left little room for the arrested admins to be considered innocent until proven guilty.

However, after an application was made to Magistrate’s Court No.3 in Orihuela, it has now issued an interim order of dismissal of the case against TodoTorrente. The court decided that the site or admins didn’t commit any crime “since the investigation showed that the website was limited to providing links to downloads and didn’t offer downloads directly.”

Essentially, the court has decided that TodoTorrente operated in a similar manner to Sharemula. The decision is open to appeal, but there is no doubt that BitTorrent sites are getting closer to legality in Spain.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.