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Spanish Judges Liken File Sharing To Lending Books 352

Posted by kdawson
from the publishers-don't-like-that-either dept.
Dan Fuhry writes "A three-judge panel in the Provincial Court of Madrid has closed a case that has been running since 2005, ruling that the accused are not guilty of any copyright infringement on the grounds that their BitTorrent tracker did not distribute any copyrighted material, and they did not generate any profit from their site: '[t]he judges noted that all this takes places between many users all at once without any of them receiving any financial reward.' This implies that the judges are sympathetic to file sharers. The ruling essentially says that file sharing is the digital equivalent of lending or sharing books or other media. Maybe it's time for all them rowdy pirates to move to Spain."
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Spanish Judges Liken File Sharing To Lending Books

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  • Re:Space analogy (Score:2, Informative)

    by barra.ponto (879488) on Wednesday June 09, 2010 @03:07AM (#32507068)

    Already done. Fahrenheit 451

  • by Anonymous Coward on Wednesday June 09, 2010 @03:11AM (#32507088)

    In Spain when you buy a media for storage (SD Cards, HDDs, CDRW, etc) you are paying a tax ("El canon digital") and that funds are shared among the authors or people with IP over published and registered works. So.. is not illegal (almost legal) to download music, movies, books, etc for personal use. Not is not personal use become rich selling 2000 "personal" copies of the last CD release of Shakira...

    You choose, in USA pay each CD to the artist o in Spain you pay to some random artist when you purchase a SDCard for take pictures of your kids... Spain is too different from USA.

    I live in Spain, but I not born here and not study here.

  • Re:But, but, but,,, (Score:3, Informative)

    by Windwraith (932426) on Wednesday June 09, 2010 @03:38AM (#32507196)

    Oh PLEASE, it's the last thing we need, with the incoming tax raises, arbitrary raise of power costs, almost half of the population unemployed, and the fact that we already pay inflated multimedia prices due to some piracy canon, add more pressure in that field and the whole balance of the country will be obliterated. Any more pressure on the average Spaniard and a random African Village (pop.3-4 and no resources) will be more valuable than the whole country.

    This is the first time I hear "good news" related to Spain in months. Watching news here is suicidal as of late, so incredibly depressing.
    Spanish judges are computer illiterate in most cases anyway, so the guy was probably laughing hard at the fact that random data is given arbitrarily high values and cannot fathom computer data (computer = toy) being valuable at all, so that explains the seemingly positive rulings in most cases.
    Yes there are a few judges not dating from the times of dictatorship, but don't expect them to be the norm.

  • Re:But, but, but,,, (Score:1, Informative)

    by Anonymous Coward on Wednesday June 09, 2010 @03:48AM (#32507256)

    there has already been a lot of pressure from RIAA and spanish/european equivalents against our laws. judges from different courts here do not always agree between them, but i still think culture is culture and business is business, and we have to figure out where the border is, what the limits are.

    spanish citizen talking, anonymous coward out.

  • Speaking from Spain (Score:4, Informative)

    by Anonymous Coward on Wednesday June 09, 2010 @04:07AM (#32507364)

    For all of you north-americans speaking out of your methane-generating device, allow me to put this in context.

    In Spain we pay a tax called 'canon' (bad choice, you cannot google that and get any meaningful results, google for 'sgae canon' instead, SGAE being the equivalent of your RIAA and its ilk). That tax is about 2-3 euros out of about 50 (those numbers vary but think you pay 2-3 eur when you buy a 500 GB HD anywhere). Got that? Ok, you pay also when you buy anything of the following: TV, DVD, camcorder, camera, iPod, iPhone, any other smartphone, USB drive, microSD, set-top box, playstation, whole computer (with HD inside), etc. Any medium capable of storing copyrighted works is taxed. Many spanish people misunderstand what this tax is for and there is outrage among the ignorant that THEY(tm) tax you 'before' you commit THE CRIME(tm). Of course, it's not like that. This tax gives us what you americans and anyone everywhere has been doing since the beginning of time: lending privately. When I was 10 and lent a mix tape to a friend it was legal. When a friend lends me a book it's legal. When today someone brings a DVD to a friend's place to play it on their telly (oh those peeracy vornings) it's also legal. So this is why spanish judges rule like this. It's also not new, we have had rulings like that for 5 years since the SGAE started their scaremonging about the trillions they lose to piracy every hour. Spanish judges have no other way to rule than this because the canon tax gives everyone the right to lend privately, even if those to whom you lend are not your friends and even if this whole process is automated. Neat? You bet. Going to last? I think the legal bases for this are sound and as I said it's been extensively tested in court. That means the only way SGAE has to take this right away is to lobby and change the law but so far they have been unsuccessful. IANAL but I think you have in the US a weaker legal figure called 'fair use' that doesn't go as far.

    Last thing: For this trick to work there cannot be any monetary profit to the web operator. As I said before, this is analog to lending privately. Have even a google ad in the page and you may lose the case; as long as you make a page with only P2P links you are safe.

  • Re:Space analogy (Score:4, Informative)

    by Lucky_Norseman (682487) on Wednesday June 09, 2010 @04:18AM (#32507410)
    Singing your favourite song in a public place does constitute copyright infringement.
  • by Anonymous Coward on Wednesday June 09, 2010 @04:23AM (#32507430)

    This tax is a really bad way to solve the problem... We pay the tax ("canon digital") when we buy anything that can be used to store content (cd, dvd, hd, sd, consoles, mobiles, computers,...)
    Companies and government pay it too, even that one may figure it's not gonna be used to store pirate content, and all this money goes to our RIAA equivalent, the SGAE, that doesn't have to give any explanations about how the money is distributed between their associates.

    The result? I have 2 computers, ps3, wii, mobiles,... I've already paid money because I'm a potential pirate. Should I pirate and get a use for the money spent or should I pay for everything and let the SGAE get money for no reason.

  • Re:But, but, but,,, (Score:5, Informative)

    by Weezul (52464) on Wednesday June 09, 2010 @04:33AM (#32507494)

    Just fyi, Spain has kept marijuana distribution illegal, but their courts have said that growing reasonable quantities for personal use cannot be outlawed. So the result is the single best drug deterrent system ever devised : marijuana users must grow a green thumb. In particular, marijuana is actually an anti-gateway drug there because marijuana users become cheap ass bastards.

  • North Americans? (Score:5, Informative)

    by OrangeTide (124937) on Wednesday June 09, 2010 @04:37AM (#32507530) Homepage Journal

    Canada has a pretty famous blank media levy in the Canadian Copyright Act. 2/3rd of the tax goes straight to authors and publishers.

    USA has a 2% import or manufacturer tax on devices that can be used to duplicate music. (Fairness in Music Licensing Act of 1998)

    I just wanted to point out that the idea of taxing based on possible copyright violation is something North Americans are familiar with, and is not unique to Spain. Although Spain has cast a much wider net than even Canada when it comes to applying the tax.

  • Re:But, but, but,,, (Score:5, Informative)

    by redscare2k4 (1178243) on Wednesday June 09, 2010 @04:38AM (#32507532)

    Pressure has already been applied and laws are on their way. The government tried to sneak a "close website if someone complains about P2P" law inside a packet of economic measures. But the public opinion (a ton of bloggers and webs made it sure the general public was informed) forced them to step it down a little and president Zapatero promised no webs would be closed without a court order (if we can trust him thats another matter altogether).

    The new Spanish IP law can be summed up as "As we don't like the judges decision, we're making a special commission to deal with copyright claims so we can shut down websites with almost no judicial supervision or monitoring". To add insult to the injury the name of that commission is Sección Segunda (Second Section), which shortens to SS, a fact that makes Godwin's law apply really really fast :D

    Now it's quite possible that they're going to pass that law anyway now that all the fuss has passed away, but they will probably have real problem to enforce it considering that:
    -Webs are protected by Freedom of Speech. Most (not all) the judges will not close one unless you have a very good motivation.
    -After it's first application is quite probably going straight to the (spanish) Constitutional Court, as Freedom of Speech right (unlike IP rights) is considered a "constitutional right" and has special protections in the constitution.

    So... interesting times in Spain for those of us who follow P2P-related news and courts decisions.

  • Re:But, but, but,,, (Score:5, Informative)

    by ThePhilips (752041) on Wednesday June 09, 2010 @06:34AM (#32508118) Homepage Journal

    i still think culture is culture and business is business, and we have to figure out where the border is, what the limits are.

    Before I come to know US/etc laws, it was plain common sense to me: business is where money exchange is involved.

    Private sharing -> no money involved -> not a business -> normal cultural information exchange.

  • Re:But, but, but,,, (Score:3, Informative)

    by WillDraven (760005) on Wednesday June 09, 2010 @07:24AM (#32508398) Homepage

    Growing cannabis is not hard. They call it Weed for a reason. I've seen people grow pot on accident just by being careless with where they toss their seeds.

  • by Anonymous Coward on Wednesday June 09, 2010 @08:11AM (#32508674)

    The "tax" you pay has nothing to do with legally of copying books, movies and music. Spanish law allows to do and sharer those copies with no benefits, but there isn't any relation to that "tax".

    As a side note "computer programs" are treated in a different way: you're allowed to make backup copies but not to share them.

  • Re:But, but, but,,, (Score:3, Informative)

    by ScentCone (795499) on Wednesday June 09, 2010 @10:11AM (#32509880)
    Private sharing -> no money involved -> not a business -> normal cultural information exchange

    No. Ripping off the entertainment you want so you can have it with "no money involved" is still a business thing. An artist or a business creates something and offers it for sale. You might want it, but you can choose to do business with them, or go without the thing they've made. Deciding to rip it off, instead, so that you can avoid paying for it, is not a "private" issue, because one half of the equation involves the person who created it and offered it up for sale. The choice to find a way to rip it off, instead of doing business as the work's creator has offered, is not a private matter. Choosing to create something of your own, and offering it up to a million of your best online friends at no charge - that's a private matter. Pirating commercially sold entertainment is not.
  • by Anonymous Coward on Wednesday June 09, 2010 @10:18AM (#32509964)

    they get a copy of a song or movie or whatever they would have otherwise had to pay for. community theft.

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