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Piracy The Courts The Internet

P2P and P2P Links Ruled Legal In Spain 265

Posted by samzenpus
from the pirate-friendly dept.
Nieriko writes After three years of arduous litigation, Jesus Guerra Calderon, owner of both a small bar and the P2P link webpage 'elrincondejesus.com' has beaten the SGAE (something like the Spanish version of the RIAA). The historic ruling states not only the legality of link webpages, but also the legality of P2P file-sharing networks. Quoting the judge: 'P2P Networks as mere data transmision networks between individual internet users, do not breach any rights protected by the Intellectual Property Law.' Downloading a file (from a P2P network) for private use is perfectly legal as long as there is no lucrative or collective use of the downloaded copy."
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P2P and P2P Links Ruled Legal In Spain

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  • by damburger (981828) on Thursday March 18, 2010 @02:39AM (#31519838)

    Wasn't the US tacitly involved in 'liberating' Spain from (democratically elected) socialists about 80 years ago as well?

  • by Tei (520358) on Thursday March 18, 2010 @03:25AM (#31520018) Journal

    Heres is a poorly idea of the spanish system:
      - you are allowed to make copys of the music you own. Call it backups
      - wen you buy a HD, a USB pendrive, a printer, a escaner, etc.. you pay something like a tax. It could be $3 for a $50 multimedia thingie. Its supposed that you are paying with this tax, the money lost by music creators for making this copy.
      - totally unrelated, but you can also download music, is not illegal, yet. That can change, but don't get in love with it.
      - the govern tell people with ads campaings that downloading music is illegal. and is not true. So some money of our taxes is directed to help a campaing to propagate the ideas of our local MAFIAA.
      - the govern is in bed with the people that want to fight piracy. Mostly the POP music industry, and the movie industry... the movie industry is moslty pseudo-intelectual fagots that get money from the govern to make pseudo-intelectual movies no one want to watch other than some old people.
      - there are some rich people that own some medias, ..think the italian president, but seems a no-factor
      - the big ISP's fight any anti-p2p thing, but are of course salivating with the idea of destroying net neutrality. So are your friend now, but can change the idea on the future and backstab the users. Data retention and big fat routers and such stuff cost money, anyway

    Is not a good system, since even Bar's have to pay for having a TV (a TV can be used to ear music)... everyone is getting screwed. But Is probably a better system than the USA one, where you commits something illegal, if you download stuff. And maybe slighty better than UK, where you have to pay for owning TV machines.

  • by OpenSourced (323149) on Thursday March 18, 2010 @03:28AM (#31520030) Journal

    That really happened, but...

    That's the law in Spain, up to now. It has always been. If you aren't profiting by copyright infringement (other than getting the copied thing, that is), then you are in the clear. In any case the current (left leaning) government has drafted a new law that makes illegal all that the SGAE wants to be illegal .Well, not all, they would like individual users to be punishable too, and the government said no thanks; and they wanted the webs to be closed without judicial intervention, and the government initially complied but then changed it to need judicial intervention, but with the new law judges should put them down, anyway). So from now on (I'm not sure about if it's fully operative now but should be soon) it should be fairly easy to put down a "links" site. At least when it's hosted in Spain.

    Anyway the situation in Spain is, I think, not too bad. Individual users are protected if they just download things for themselves or others, or even if they make a thousand photocopies of a book and give them away, as long as they get no profit from it. But that will surely change in the future too. When two groups fight for something, and one (the SGAE) has a clear financial objective, and the other (the file sharers) a vague convenience one, the first group will in the end prevail, against all reason, logic or fairness.

  • by xtracto (837672) on Thursday March 18, 2010 @03:55AM (#31520134) Journal

    News just in.
    Pirate bay gives up vagabond lifestyle to move to permanent home in Spain.

    Just two relevant points:
    First, it seems that one of the reasons why the court ruled in such a way is because the aforementioned web page does not have any kind of advertising (no profit):

    el dueño de la página "no percibe cantidad alguna directa o indirectamente relacionada con el servicio que ofrece", que ni siquiera tiene publicidad, por lo que no hay ánimo de lucro, ni directo ni indirecto.
    --
    The owner of the page "does not perceive any quantity direct or indirect related with the service he is offering", he does not even has advertising, hence there is no absolutely n o profit, direct or indirect.

    [Translation mine]

    Thus it seems that it will be a prerequisite from other P2P web pages to avoid adding advertising if they want to come clean in the future.

    Now, another snippet that got my attention was about the "pago del canon" or canon payment which is a "tax" that Spanish have to pay for each HDD or CD/DVD they buy which goes directly into the pockets of the RIAA:

    3. Qué pasa con el pago del canon?
    En la sentencia, el juez considera que estas copias, si son guardadas en un disco duro o en discos ópticos, "están gravados con el correspondiente canon o compensación equitativa del artículo 25 de la Ley de Propiedad Intelectual", por lo que se estaría cumpliendo con el pago del canon.
    --
    3. what happens with the canon payment?
    In the sentence, the judge considers that these copies [made by P2P], if they are saved in a hard disk or optic discs, "they are taxed with the corresponding 'canon' or compensation from article 25 of the IP Law", hence it would be complying with the canon payment.

    [Translation mine]

    In my opinion that is the first time the Judicial system has made sense. I know for example that In Canada people must pay a similar tax (please correct me if I am wrong). I want to applaud the guy for standing up for his rights.

    Quotes Source: in spanish [expansion.com]

  • by damburger (981828) on Thursday March 18, 2010 @03:56AM (#31520136)
    Franco apologetics gets modded interesting? If you want to know why the republicans attacked the catholic church, perhaps you should look at the churches intimate involvement with the Fascists. The Internet is replete with pictures of catholic bishops in spain giving roman/Nazi salutes.
  • by mcvos (645701) on Thursday March 18, 2010 @04:08AM (#31520186)

    Downloading a file (from a P2P network) for private use is perfectly legal as long as there is no lucrative or collective use of the downloaded copy.

    So this pretty much destroys copyright in Spain, right?

    No it doesn't. It just makes (or keeps) file-sharing legal.

  • Re:In Hungary, too (Score:3, Informative)

    by icebraining (1313345) on Thursday March 18, 2010 @04:11AM (#31520192) Homepage

    In Spain there's also a levy: http://es.wikipedia.org/wiki/Canon_por_copia_privada_(Espa%C3%B1a) [wikipedia.org]

  • by Anonymous Coward on Thursday March 18, 2010 @04:38AM (#31520322)

    Just to point out some cultural differences...
    Say more that this judge ruled that FOR THIS CASE, P2P is legal. We use the Roman Law (Natural law you say?), so, a judge ruling do not creates jurisdiction. Tomorrow other judge can rule the opposite and be perfectly Okay.
    Laws are interpreted, but not changed by a trial result.
    This ambiguity will remain until the senate raises a law saying "P2P is legal for non lucrative uses".

  • by Anonymous Coward on Thursday March 18, 2010 @04:47AM (#31520352)

    Franco committed mass murder. The bodies were dumped / buried alongside roads. The bodies are continually being revealed by roadworks. The Franco apologists are the ones saying 'the past is past, move on'.

  • by Inconexo (1401585) on Thursday March 18, 2010 @05:25AM (#31520526)
    Well, it isn't exactly as good as it sounds. First of all, private copy is quite old. I think it comes when all people recorded tapes to his friends. Legislators thought that it would be easier to provide a legal way of doing this, than turn half of the citizens into criminals. So, copy of copyrighted products is legal in Spain (and many other countries as France) provided two conditions: don't make money with it, and don't publish it. In exchange, a canon was applied: for every tape bought, copyright holders would receive a little compensation. What judges say with this sentence is first, that p2p is a way of private copy, as it works peer to peer, and second, publishing links to a work, is not publishing the work. But the panorama isn't good at all in Spain. The author organizations still try to criminalize the copy, and lobby aggressively for it. Government is quite near this position, and last legal reforms hardens things a little. Also, government tried to legalize a way of closing websites without judges intervention (so a sentence like this one cannot prevent the closure). In mass media, this powers spread continually the message that copying and downloading is immoral and illegal (which is not true), comparable to terrorism or person traffic. US government is also making high pressure to make countries adopt a stronger copyright police. And no one wants to say no to Obama.
  • by OpenSourced (323149) on Thursday March 18, 2010 @06:22AM (#31520826) Journal

    Uhm, you are right. Redistribution is allowed but in limited form (making a copy of a DVD for a friend is allowed). If you do it by the thousands, even if you get nothing from it, you are out of the clear. The relevant article of the law (in Spanish):

    Artículo 31. Reproducciones provisionales y copia privada.

            1. No requerirán autorización del autor los actos de reproducción provisional a los que se refiere el artículo 18 que, además de carecer por sí mismos de una significación económica independiente, sean transitorios o accesorios y formen parte integrante y esencial de un proceso tecnológico y cuya única finalidad consista en facilitar bien una transmisión en red entre terceras partes por un intermediario, bien una utilización lícita, entendiendo por tal la autorizada por el autor o por la ley.

            2. No necesita autorización del autor la reproducción, en cualquier soporte, de obras ya divulgadas cuando se lleve a cabo por una persona física para su uso privado a partir de obras a las que haya accedido legalmente y la copia obtenida no sea objeto de una utilización colectiva ni lucrativa, sin perjuicio de la compensación equitativa prevista en el artículo 25, que deberá tener en cuenta si se aplican a tales obras las medidas a las que se refiere el artículo 161. Quedan excluidas de lo dispuesto en este apartado las bases de datos electrónicas y, en aplicación del artículo 99.a), los programas de ordenador.

    Relevant here is the second point, where it says "copia obtenida no sea objeto de una utilización colectiva ni lucrativa", that is, "the obtained copy won't be used collectively or for gain". I guess the collectively is aimed to bars showing per-pay sport events in giant screens, a common thing in Spain, but anyway, it's limited.

  • by GreatBunzinni (642500) on Thursday March 18, 2010 @10:31AM (#31523360)

    That translation got botched. Instead of "collective" use you should read "public" use, in the sense of public reproduction (i.e., DJing, ambient music, playing a DVD on a restaurant, etc...). Any jurisdiction which followed the french tradition of copyright law bases their copyright law on a couple of principles, which are:

    • The artist is entitled to a compensation for accessing his work of art
    • Everyone should be able to have access to art and education free from any restrictions and independent of their social and economical status

    Those principles are made compatible through the right to freely access and distribute any work of art without an express authorization by the artist if and only if no one profits from it (i.e., the only part which has the right to profit from a work of art is none other than it's author) and if their distribution doesn't have a considerate effect on the work's commercialization. As a consequence, as the public reproduction of a work of art is seen as a way for someone to profit from it (attract clients, boost sales, generate added value on a service, etc..) then, following the french copyright tradition, it also constitutes a no-no.

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