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File Sharing Ruled Legal In Spain

Posted by Zonk on Fri Nov 03, 2006 09:59 AM
from the for-about-five-minutes dept.
Media Government The Courts Music The Internet News
stupid_is writes "As a follow-up to a previous discussion a judge in Spain has ruled that under Spanish law a person who downloads music for personal use can not be punished or branded a criminal. This seems to be a teeny bit clearer than the first article, which points out that downloading is a civil, and not criminal, offense for individuals. The Spanish recording industry federation Promusicae is predictably a bit peeved, and says it will appeal against the decision." From the article: "The state prosecutor's office and two music distribution associations had sought a two year sentence against the man, who downloaded songs and then allegedly offered them on a CD through email and chat rooms. However, there was no direct proof he made money from selling the CDs. Justice Minister Juan Fernando Lopéz Aguilar says Spain is drafting a new law to abolish the existing right to private copies of material. Due to different regulatory regimes in Europe, the proceedings against file sharers differ greatly in each country. However, most European judges tend to take a harder stance on file sharing. Twenty two people in Finland were fined €427,000 last week for illegally sharing movies, music, games and software, while courts in Sweden also fined two men who had downloaded movies and music for personal use."
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[+] Technology: Spain Outlaws P2P File-Sharing 432 comments
Section_Ei8ht writes "Spanish Congress has made it a civil offense to download anything via p2p networks, and a criminal offense for ISP's to allow users to file-share, even if the use is fair. There is also to be a tax on all forms of blank media, including flash memory drives. I guess the move towards distributing films legally via BitTorrent is a no go in Spain." Here is our coverage of the tax portion of this law.
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  • Downloading != Sharing (Score:3, Insightful)

    by Fastolfe (1470) <david@fastolfe.net> on Friday November 03 2006, @10:04AM (#16702879) Homepage
    Everyone also needs to keep in mind that in most countries where these things are issues, the offenses related to downloading things versus sharing them are completely different. I don't believe anybody even in the US has been taken to court merely for downloading. It's always about sharing (redistribution). It's frustrating when the media tends to use the two things interchangeably.

    • Re: (Score:3, Insightful)

      by giorgiofr (887762)
      Nobody downloads mp3 via http from pimply-faced youths anymore. People get music on eMule and movies on BitTorrent. So, everytime you're downloading, you're uploading as well.
      • There is a difference between sharing bits of a file while downloading the file, and seeding a file when you have 100% of it. Nobody in the US has been nailed for uploading while downloading using Bittorrent as of yet - only people hosting 100% of the files for uploading...Just becuase you are downloading does not mean you are a seeder.
      • *cough*USENET*cough*
      • Nobody downloads mp3 via http from pimply-faced youths anymore.

        No, we download from AllOfMp3. No uploading, no sharing, just good access to quality music. I keep waiting for the RIAA to pick up the model. Guess it's not happening...

    • Two years in prison for copying a few files. Sheesh.

      Still, they're working hard to change the laws. What they want now is for downloading to be illegal, AND for a tax to be placed on all recordable media. If they manage to pass it then I'll be paying the RIAA for all the CDs I use for data backups, all the CDs which end up as coasters because I dared to touch the mouse while it was recording, etc.

      • all the CDs which end up as coasters because I dared to touch the mouse while it was recording, etc.

        how old is that burner that you don't have buffer-underrun protection? i haven't had a coater in 5 years due to a buffer underrun (liteon 482448s burner), though i have had a couple due to other factors such as the power browning/blacking out at bad times (i need to get a UPS) or the burning software crashing or whatever.
    • We know the hive mind that is /. can't grok the difference between copyright, trademark, and patents, but I'd think the difference between uploading and downloading wouldn't be out of reach.

      Oh well.

      And before you reply, "but BitTorrent...," two points: 1) are there any torrent clients that do not allow the user to control uploading? And 2) if there are, so?

      In the words of the parent poster, "Downloading != Sharing"
    • I don't know the US legal system but from what I understood, every law transgression is 'criminal'. In most EU states, the 'criminal' label describes only the most serious violation. There are less serious violation, not called 'crimes' (I think you would translate it by 'offense') that are still illegal but the difference IIRC correctly is that you cannot be sentenced to jail for an offense.

      • Rubbish.

        Some offences are criminal offences and others are civil offences. In the UK at least, they are tried in completely separate courts. You cannot be arrested by the police, or prosecuted by the crown for a civil offence. Examples of civil offences are: Copyright infringement, libel, trespass. All that can happen is that the person who has the complaint can sue you in a civil court.

        Not to mention that the methodology behind coming to a verdict is completely different in a criminal and civil court. In

      • Until the cost of the action is >$5k does it become a criminal case (or some physical, etc crime against an individual, others, and so on), prior to that it's a misdemeanor, or possibly a civil case (depending upon the circumstances). Also it depends upon what you claim as "jail", I'm sure that in most EU states if you are a drunken beligerent "football hooligan" you can goto jail to cool off and other such stupditiy, but I think that you were really meaning more like what we would meant to be sentences
          • Umm... no, neither myself of the parent said that. If you re-read what I posted:

            I think that you were really meaning more like what we would meant to be sentences to a prison stay.
      • IANAL.

        No, the US legal system has criminal and civil courts as well. Remember OJ Simpson? He was found not guilty at the criminal trial, and required to pay damages of some large amount at the civil trial. The main difference is that criminal cases must be proved "beyond a reasonable doubt." Civil cases are decided on a "preponderance of evidence," which is much less stringent a requirement.
      • In the US, copyright infringement is entirely a civil tort. Meaning it's not "illegal" (it breaks no laws), but it does infringe on someone's rights, so you can be tried in the civil court system and be required to pay damages.

        There are some laws on the books, however, for certain extreme cases of copyright infringement, where you're doing some wholesale reselling of copyrighted works and the like, and you can be fined/imprisoned for that. The DMCA also makes certain infringement-related activities like c

    • Actually, the real issue with is copying... not distributing.

      But if personal use copying isn't considered an infraction, then copying won't land you in trouble unless you do something more with it that wouldn't qualify as such use, such as distribute it or share it. But in reality the real issue with copyright is always about _copying_.

      This is why it's not an infraction to share your own physical music CD's that you've purchased... because what you are loaning aren't copies that you ever made in the

    • What someone needs to develop is a country based p2p.

      Ie, you dont share to anyone inside your country, then you will be fine. you download from outside of your country, you share to anyone not in your country, suddenly the international laws regarding the suits would be 10 times more complicated and basically impossible to try.
      • This probably wouldn't work as well as you would like.

        For starters, if the infringing activity is a crime in your country, it's your country's law enforcement that prosecutes you. All it would take is someone pointing out what you're doing.

        But ignoring that, many of the major sue-happy copyright holders have versions of themselves in lots of countries, so you might deter them a little bit (or maybe a lot), but not entirely. This approach would, however, deter most or all of the suits from smaller copyrigh

      • Re: (Score:2, Funny)

        by Anonymous Coward
        Detective: This is the home of Lars Ulrich, the drummer for Metallica. Look. There's Lars now, sitting by his pool.

        Kyle: What's the matter with him?

        Detective: This month he was hoping to have a gold-plated shark tank bar installed right next to the pool, but thanks to people downloading his music for free, he must now wait a few months before he can afford it. Come. There's more. Here's Britney Spears' private jet. Notice anything? Britney used to have a Gulfstream IV. Now she's had to sell it and get a Gul
  • It seems that he managed to dodge the Music Industry bull charging right into him, with a quick waist movement and a flourish of his red cape...

  • Comparison invalid (Score:3, Insightful)

    by ruppel (82583) on Friday November 03 2006, @10:19AM (#16703045)
    The comparison with Finland is invalid since the sentence was given for filesharing and not for downloading files. Untill recently the legislation in finland was as clear about downloads (i.e. they were legal). Now we have the new european version of the DMCA and there haven't been any cases to test whether that status has changed. Since the legislation is essentially (supposed to be) the same throughout europe, I would guess that simply downloading stuff is still legal.
    • They weren't even found guilty of filesharing: The court threw the copyright infringement charge out becuase there was no proof. They were convicted of "contribution to copyright infringement" (administering the website). This fact was pretty much forgotten by the media, they just put "Filesharers convicted - 400 000 bill" as the title of their news story...

      "contribution to copyright infringement" -- well, I guess the Youtube guys are lucky not to live in Finland.
  • This seems to be a teeny bit clearer than the first article, which points out that downloading is a civil, and not criminal, offense for individuals.

    I am completely confused:

    1) The first article doesn't say that.

    2) The second article sort of *does* say that.

    3) Assuming that file sharing really has been ruled a civil but not criminal offense, the "Ruled Legal" headline via the dimwitted Register, plagiarizing submitter and sleepy editor is completely false.

  • Were they expecting an inquisition? (Score:5, Funny)

    by weeboo0104 (644849) on Friday November 03 2006, @10:34AM (#16703217) Journal
    The Spanish recording industry federation Promusicae is predictably a bit peeved, and says it will appeal against the decision."

    I don't know what they expect by filing an appeal.
    I mean, nobody expects a Spanish inquisition.

    Someone fetch the Promusicae the comfy chair or some soft cushions.
  • All the bullfighting ballads you can download, for free!

  • What you don't know... (Score:5, Informative)

    by kinocho (978177) on Friday November 03 2006, @10:43AM (#16703345)
    Is that in spain there is "law" that allow the sgae and company (RIAA equivalent in here) to tax the cd's and dvd's with more than one euro each (in the case of dvd's), to "compensate" for loses due to piracy.

    Just so you can understand better... last year they got 300 million euros just in that concept. And believe me, you can bribe a lot of people with that.

    Oh, I almost forgot, that money is shared unequally among the capos of the SGAE, leaving all the other 80.000 members with nothing.

  • "Not Illegal" does not mean "Legal" (Score:3, Informative)

    by jezor (51922) on Friday November 03 2006, @10:47AM (#16703395) Homepage
    I agree with the person who posted that downloading and uploading are very different potential offenses; consider the difference between drug use and drug sales (or distribution). Another point to consider is that the law in Spain may not consider copyright infringement criminal if no money is earned. This used to be the situation in the U.S., which is why an MIT student named David LaMacchia was found not guilty of wire fraud in 1994 [greenspun.com]. At that time, even massive distribution of copyrighted material was not a crime, if no money was made, and U.S. District Judge Richard Stearns said what had happened wasn't wire fraud but non-criminal copyright infringement. As Judge Stearns wrote in his opinion,

    This is not, of course, to suggest that there is anything edifying about
    what LaMacchia is alleged to have done. If the indictment is to be
    believed, one might at best describe his actions as heedlessly
    irresponsible. and at worst as nihilistic, self-indulgent, and lacking
    in any fundamental sense of values. Criminal as well as civil penalties
    should probably attach to willful, multiple infringements of copyrighted
    software even absent a commercial motive on the part of the infringer.
    One can envision ways that the copyright law could be modified to permit
    such prosecution. But, "'[i]t is the legislature, not the Court which is
    to define a crime, and ordain its punishment.'" Dowling, supra at 214
    (quoting United States v. Wiltberger, 5 Wheat. 76, 95 (1820)).


    In fact, the U.S. Congress took Judge Stearns up on his suggestion, adding the concept of commercial value and intent to profit to the criminal portion of the U.S. Copyright Law in the No Electronic Theft Act [usdoj.gov].

    I would not be surprised to see the Spanish law changed to close this loophole as well. {Prof. Jonathan Ezor, Touro Law Center Institute for Business, Law and Technology [tourolaw.edu]}
  • ...but have no place to go, now you have a place to go!

    Run with the bulls and download music and movies!
  • When the musical artists of Spain cry out in anguish, suffering their poor fates, who will hear them?

    Who will aid these poor souls, the noble artists who wish only to create beautiful works of musical art?

    Who will avenge them upon the uncaring souls who insist on simply taking what they want?

    El Kabong, that's who! <ka-bong!>

  • Justice Minister Juan Fernando Lopéz Aguilar says Spain is drafting a new law to abolish the existing right to private copies of material.

    I know this is just a tangential point in the article, but I sure wish there was some more detail about that. Are they really trying to say that there is no such thing as first sale any more? Will all copyrighted material become licensed, not sold, by law? This is wrong and unpossible[1] in so many ways, I can't even figure out what to argue against.

    [1] Not a typo

  • Okay, now how do I get a Spanish IP address?

  • Not quite true (Score:4, Informative)

    by Garabito (720521) on Friday November 03 2006, @11:33AM (#16704031)
    Even when a judge ruled p2p legal in that case, that doesn't rule p2p legal in general. This is because Spanish legal system is based on Civil or Roman Law, not in Common Law like the U.S. or Great Britain.


    In Common Law, this ruling would have made a precedent which other judges in further cases should follow. In the Spanish system, judges are only required to follow what is stated in written law; rulings for previous similar cases are used only as a guide, but are not mandatory.

    • They are pirates, so I assume it's in gold doubloons.
    • There is a Euro sign infront of the number (if you can't see that, time to upgrade your browser ;)

      The Euro is the name of the currency the European Union is trying to make the common currency of europe. Many countries are in the process of getting rid of local currencies in favor of the Euro.
          • Pulse_Instance wrote:
            Find some way to prove that the elections you hold are rigged ...

            What would qualify as sufficient 'proof' in this case? Could you provide some examples of what would be acceptable and not dismissed as 'hearsay' or 'moonie conspiracy theories'?

            ~Rebecca

    • Re: (Score:3, Insightful)

      by Volante3192 (953645)
      Every day, fewer and fewer customers enter my store to buy fewer and fewer CDs. Why is no one buying CDs? Are people not interested in music? Do people prefer to watch TV, see films, read books? I don't know. But there is one, inescapable truth - Internet piracy is mostly to blame. The statistics speak for themselves - one in three discs world wide is a pirate.

      One in three discs is pirated. So, are you referring here to counterfeit discs produced on the black market and sold for 3 bucks in the subway? Bec
      • ...I actually stopped reading after the line I quoted.

        Now I feel bad, wearing out my keyboard like that...
      • Ford and GM aren't selling as many cars either, perhaps they need to crack down on those people buying Toyotas or the cheaper imports.

        I'd also like to make a $100k per year selling buggy whips, perhaps I can get the government to guarantee the success of my business model?

        I'd also like to make it illegal for people to share water. They must buy it from a legitimate bottler, otherwise they make it impossible for those hardworking water bottlers to make a living. Some people mix lemons and sugar in their ille

    • Re: (Score:3, Insightful)

      by scharkalvin (72228)
      Is the record retail business going bust due to filesharing?
      Maybe, but there are other forces at work here....
      You may be loosing business to the likes of Amazon.com, Ebay, and other non-brick and mortar
      retail outlets that are undercutting your price. Also there are LEGAL download sites
      (such as itunes) that offer customers the choice to buy just the cuts they want, not the entire
      CD. Face it, your method of business is going the way of the dinosaur. File sharing may be
      part of the problem, but by many accou

    • Re: (Score:3, Interesting)

      by Siberwulf (921893)
      While I know the parent is fake, and made up, I just caught this one line:

      They have fought the War on Drugs with skill, so why not the War on Piracy?

      And I have to ask... how well has that War on Drugs turned out?
    • "Filesharing is theft. Plain and simple"

      Once we peel back the "plain and simple" affirmation, we find an entirely incorrect statement. It is technically and legally impossible to steal via p2p.

      "As a record store owner, My business faces ruin"

      Why say records when you mean CDs?

      "CD sales have dropped through the floor. People aren't buying half as many CDs as they did just a year ago"

      Where is the blame being helped in iTunes, which is NOT filesharing, but is definitely eating into your business?
    • Yes indeed, "Christian rock" is practically flooding the torrent swarms and P2P traffic so badly that it's hard to find porn anymore. :-|

      (Just feeding the troll, LOL ;-)

    • Re: (Score:2, Interesting)

      by Penguuu (263703)
      There were 21 persons who are paying in all that 427000 EUR. So it's about 20 000 EUR per person.

      And the persons who were sentenced were administrators of the torrent-sharing site, not some guys who just downloaded some songs.
      • Really? There are only monetary punishments for rape and murder where you live?? What country are you from that capital crimes are merely civil cases involving fines?

    • Re: (Score:3, Interesting)

      by PhysicsPhil (880677)
      ...I remember borrowing tapes and making copies. I never bought music, I bought blank tapes. If a friend didn't have a song I wanted, I listened for it on the radio and recorded it off that (granted the quality sucked). This is basically the same thing as file sharing. Why were they not tracking down the millions of kids that did this in the 80's?

      Do you really need to ask? Widespread copying was a harder task in the 80s. You had to find someone who owned a copy of said music, which meant a local friend.
      • Widespread copying was a harder task in the 80s. You had to find someone who owned a copy of said music, which meant a local friend.

        Complete rubbish. Copying tapes was done en-masse when I was in education. Everybody, and I mean everybody had a twin cassette deck.

        The difference is that the RIAA would have had to stalk people and invade their rooms to catch them. Now they can sit in a cozy server room somewhere and track their IP addresses.

        And no, the RIAA's sales problems aren't due to piracy, they

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