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The Courts Your Rights Online

Spanish Judges Liken File Sharing To Lending Books 352

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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  • by ravenspear ( 756059 ) on Wednesday June 09, 2010 @02:17AM (#32506854)
    Yep, expect international pressure to be put on Spain to change their laws. After all any laws we make are obviously better.
  • by Adambomb ( 118938 ) * on Wednesday June 09, 2010 @02:20AM (#32506864) Journal

    For all i'm for this ruling, i gotta say the choice of analogy was rather terrible. In the case of lending a book or property, theres still only a single instance of the property in use. In the case of file sharing, the original good is duplicated into two separate instances of equivalent good, hence the "copy" part.

    Trying to base a defense on this concept would be blown out of the water by the first person to say "no its more like borrowing a book from the library, copying it verbatim and having the copy bound such that there is little to no difference between either copy of the book".

  • by MaskedSlacker ( 911878 ) on Wednesday June 09, 2010 @02:28AM (#32506910)

    It's no worse an analogy than calling copying 'theft.'

  • by Opportunist ( 166417 ) on Wednesday June 09, 2010 @02:29AM (#32506918)

    I doubt pressure from the US is necessary. A bit of lobbying and a few greens in the correct pockets should take care of this problem.

    When will you socialists learn, don't have government mess with things private business can do more efficiently?

  • Space analogy (Score:5, Insightful)

    by MachDelta ( 704883 ) on Wednesday June 09, 2010 @02:33AM (#32506932)

    The real problem with the file-sharing phenomenon is that it *has no* accurate analogy. Nothing like this has ever been possible in history, and until it wasn't even imaginable by most people until it had already begun. The first-world legal system, relying so heavily on comparison and precedent, is woefully unequipped to deal with events that do not fit into an existing paradigm. That's why judgments range from "100 biiiiiilion dollars" to "Nothing to see here, move along". Hell, capitalism isn't even prepared to deal with something like this. Asking a market analyst what happens when the cost of production reaches zero and is available everywhere is like asking a physicist what happens inside a black hole - neither one has the foggiest fucking idea. All they know is that the conventional rules of the last 200 years don't apply, and that anything going in will never come out.

    Brave new world indeed.

  • by jnnnnn ( 1079877 ) on Wednesday June 09, 2010 @02:51AM (#32507002)

    No, America is trying to strengthen copyright law so that it can make more money.

    Multimedia is one of America's biggest exports. It is economically obvious (at least in the short term) that those who look after the country should strengthen copyright law.

    It's up to other countries to flip the bird or extract economically equivalent concessions in return.

    IANA (I am not American.)

  • Re:Space analogy (Score:5, Insightful)

    by Opportunist ( 166417 ) on Wednesday June 09, 2010 @02:51AM (#32507006)

    That is pretty much the problem, yes. There is nothing like information. Nothing else can be reproduced and distributed at will without (or with insignificant) cost. And until we invent matter-energy transformation (and we got access to a cheap energy source, else that's gonna be tough) no tangible good will ever be comparable.

    The problem is also that our economy system is based on the idea of supply and demand. And when supply reaches infinite, which it does if reproduction is free, demand can not even remotely match and hence the price plummets. Which in turn means that, since the original creation of the information was not free, the original creator cannot recover his cost and, following the law of capitalism, hence would have to stop creating.

    And maybe that's eventually what has to happen. That the creation of easily reproducable art (I use that word loosly here) has to become a non profit activity, where you could only generate profit by selling things that are not in limitless supply, like concerts (you can't clone the singer and have him appear everywhere at once), authentic autographs (photocopies don't count, people that want something like this want the real deal) and the like.

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

    by zwei2stein ( 782480 ) on Wednesday June 09, 2010 @02:54AM (#32507016) Homepage

    Silly. Of course it has: Verbal Communication.

    I can tell you few lines of memorized dialogue which you can remember and repeat to someone else. You can also hear diferent pieces from different people to make your own mental image of screenplay (aka, leech from swarm).

    P2P sharing is only different volume and accuracy.

    In fact, this sounds like cool experiment: give 100 people each piece of screenplay and let them complete it, p2p style.

  • by Opportunist ( 166417 ) on Wednesday June 09, 2010 @03:08AM (#32507074)

    Sure. Calling it robbery. As they do in German, there it's a "Raubkopie" ("robbery copy").

    You know what a "robbery copy" really is? When I go to Best Buy and force the store clerk at gunpoint to copy a CD for me. Then you may call it that.

  • Re:Space analogy (Score:3, Insightful)

    by ztransform ( 929641 ) on Wednesday June 09, 2010 @03:12AM (#32507090)

    Either that or we just get sane copyright laws - say for the first two years after a movie or game comes out, it's illegal to download it. After those two years are up and they've made their realistic dvd / game sales, then it's fair game to download.

    ... err.. which is still stuck in the old way of thinking: maybe have a re-read of the above insightful posts.

    I had to laugh a year ago watching an Australian TV debate on this topic. Some school drop-out loser on the front row stands up and tells us he's a budding guitarist and he doesn't want people stealing his music! And I think to myself I probably have twenty times his musical talent, finished school, went to university, got a job, ten years later bought myself the musical instruments I always wanted, and music editing software I wanted, and can create music as a hobby!

    It's time people who want to call themselves "musicians" actually worked for a change.

  • Re:Space analogy (Score:5, Insightful)

    by Opportunist ( 166417 ) on Wednesday June 09, 2010 @03:15AM (#32507098)

    Many good artists actually have to work for their money. They run from gig to gig and play for their audience. The problem are the ones that once created something and want to milk it for the rest of their life.

    It's like a bricklayer expecting to be paid annually for every house he ever built.

  • by TheVelvetFlamebait ( 986083 ) on Wednesday June 09, 2010 @04:19AM (#32507418) Journal

    This decision highlights the pervasive anti-commercial bias in society. It often has no practical basis. Often, the making of the money adds no extra damages to the crime itself. The bias against commercial sharing is no exception.

    Commercial sharing involves sharing the same works to the same people. It has the same demand-killing effects that non-commercial sharing does. It affects the artists in the same way. The only real difference I can see is that the artist, unlike with non-commercial sharing, might actually be able to compete with the non-vanishing price point of commercial sharers. If anything, commercial sharing is better for artists than non-commercial sharing.

    Why do we make such a distinction? Why is it so much worse for a person to receive an ill-gotten stream of money than, say, an ill-gotten stream of free entertainment? It makes no sense to me. I cannot support a decision not grounded in (not so) common sense.

  • by DrJimbo ( 594231 ) on Wednesday June 09, 2010 @04:44AM (#32507566)
    I think the ruling makes sense, you just disagree with it. Of course, sharing a file is not identical to lending a book. If they were identical then there wouldn't have been a trial or a ruling.

    The judges realized sharing a file was not identical to lending a book. File sharing is rather new to the courts and the judges needed to figure out the legality of this new "file sharing" activity. The US courts have sided with the corporations and have deemed that file sharing is just like making and distributing counterfeit physical books and cds. But sharing a file is not the same things as printing and selling copies of a book. If we apply your logic to the rulings in the US courts then we would have to conclude that those rulings don't make sense either.

    The truth is that file sharing falls in between lending and counterfeiting. IMO, it is the US rulings that make no sense. The reason is that with file sharing, the recurring cost for producing digital information that people want is actually negative. For example, if a particular torrent file is popular then there will be a lot of seeders for it. The US courts are trying to hobble the miracle of zero or negative recurring costs while the Spanish court's decision unleashes the incredible efficiency of distribution via file sharing.

    You asked how can someone make money writing a book. The answer is easy, I (and many others) pay for web sites and books and music that I like even if I am not required to. I see it as my votes for things I like. I want to keep the things I like going so I gladly contribute. I agree that legalizing file sharing might have a drastic effect on publishing industries. These industries, for the most part, have devolved to transforming scarcity into profit. Once scarcity is no longer an issue, their scarcity based business models will either transform or die. While this may be painful for workers and investors who stick with the outmoded model past its expiration date, for society as a whole it is a good thing. Authors who inspire readers enough to donate money or pay in order to keep the author rolling will survive. Many authors will thrive. Less inspiring authors won't do as well but since it costs only about $200 to self-publish a book, the barrier for entry, even for lousy authors is very low.

    In general, the creation of artificial scarcity and artificial inefficiency make society as a whole less wealthy while they make a few individuals more wealthy. This is morally indefensible.
  • by SharpFang ( 651121 ) on Wednesday June 09, 2010 @05:11AM (#32507696) Homepage Journal

    I'd say your analogy is too far-fetched. After all, copyright is taking possession over something that didn't exist before. I mean, yes, you could say that it is a theft, stealing - removing the idea from the global, public, free pool of unrealized ideas and preventing anyone from getting exactly the same idea again... uh, actually it seems like copyright is more of a theft than "copyright infringement"...

  • Re:Space analogy (Score:3, Insightful)

    by Kjella ( 173770 ) on Wednesday June 09, 2010 @05:21AM (#32507744) Homepage

    I had to laugh a year ago watching an Australian TV debate on this topic. Some school drop-out loser on the front row stands up and tells us he's a budding guitarist and he doesn't want people stealing his music! And I think to myself I probably have twenty times his musical talent, finished school, went to university, got a job, ten years later bought myself the musical instruments I always wanted, and music editing software I wanted, and can create music as a hobby!

    Wow, that's arrogant. I was whiz through a thick text book and ace any exam, but I can't play music worth shit. Likewise, there's people that'll never do well with books but hand them a guitar and they can play to make your skin crawl. But alright, let's say you are the talent. Do you think the optimal to promote the production of music is the path you've taken? That after ten years of school, degree, working and purchasing you can finally play as a hobby? Or would you probably be a much better guitarist, and a far more productive guitarist, if there was a possibility of doing it full time?

    There's a lot of talk about the Internet and playing at concerts, but they're really not that coherent. Sure, you can go broad on the Internet and get thousands of fans but if they're spread so thin and even all the way around the world you won't make money off concerts. Concerts you can make an earning off by being a local hit, play the music that's popular locally and maybe just as much for being a live musician than the music. I know people here hate the world monetize, but if you can't monetize having an Internet fan base it's just like collecting mod points or comment thumbs or diggs, ultimately it's not advertising if you can't sell something in the end. And no, T-shirt and coffee mugs don't really amount to much if you can't sell songs, sell the information.

    Unfortunately I don't see a perfect solution to that. From all I've seen of DRM and lock-in and dubious attempts at suing tools and infrastructure and file hosts and search engines, I've come to the conclusion that the ends do not justify the means. Society is better off just killing copyright and dealing with the fallout some other way than to try turning back the clock of history. But I'm not so blind as to think we won't lose some things, that some people who makes a living today will lose that income and so lose what they produce. But then, we have lost many classes of workers throughout the times, society will adjust. There's much more we stand to lose than we stand to win by trying to make water not wet.

  • by DrYak ( 748999 ) on Wednesday June 09, 2010 @05:58AM (#32507962) Homepage

    Several other countries in Europe tolerate self -growing/-producing small quantities of cannabis too.
    It seems that the old world is better at making distinctions between large organised crime rings, and a couple of people in a corner doing stuff harming no-one else.

  • Re:Space analogy (Score:3, Insightful)

    by dwandy ( 907337 ) on Wednesday June 09, 2010 @09:26AM (#32509380) Homepage Journal

    when the cost of production approaches or reaches zero. You no longer get optimal resource allocation.

    As I have understood the terms, you have optimal resource allocation when the marginal cost is equal to the marginal revenue. So I'm not sure I understand how p2p sharing is anything other than what economics predicts? I'm also not sure how this is less than optimal resource allocation? It might not make those who profit from artificial scarcity happy, but that doesn't mean it's not an optimal allocation of resources.

    And it has long been known how you can fix that.

    I'm not sure what there is to "fix" here. We invented a monetary and economic system to deal with the fact that physical goods are scarce. Had we had an infinite supply of physical goods we never would have needed to invent this system. That we applied artificial constraints to an infinite good is something of an accident of history.

    The second way is to artificially give things like music and movies the attributes necessary to make them work like more tangible goods in the free market.

    Of course that is like legislating that water not be wet. Sure, you can pass a law, but you have no means to enforce it. And that is actually the bigger disadvantage to me as a person (rather than the obvious poor allocation of resources you have listed). In order for a copyright law to be effective I need to give up my personal liberties as we move ever towards a police state. The more the law clamps down on those who share legally protected ideas, the more it moves underground, the more the state needs to clamp down until we arrive at one of two situations: a fairly complete police state with minimal freedom (including minimum of copying of protected works) which includes the full set of legal abuses that one would expect from a police state. Or we arrive at the conclusion that we can't control copies of ideas without losing our personal freedoms and give up trying to do so.

    Most people are fundamentally not honest

    This isn't an honesty question. It's an economic one to start, and a liberty question at the end. That we would give up our personal freedoms for corporate profit is disturbing.

  • by HikingStick ( 878216 ) <> on Wednesday June 09, 2010 @09:35AM (#32509500)
    The real difference between file "sharing" and lending books seems to be that shared media (e.g., music, video) files) tend to get copied and passed around--they never are returned--and are thus dissimilar to lending a book. It's like comparing apples and oranges. To make lending a book like sharing media files, one would need to make copies of the book and pass them out to any interested persons--something that is clearly a violation of copyright in most instances (i.e., even fair-use limits how much of a work may be reproduced for protected uses).

    Since music often is broadcase on public airwaves, I do believe it deserves different treatment than books, however. I liked the interpretation of the U.S. Copyright Act of 1983 that allowed for the transfer of CD recordings to tapes, because the tapes could not preserve the same level of sound quality (effectively degrading the audio to a level comparable to that heard on radio broadcasts). I wish media companies would allow people to rip and share audio files at sub-optimum levels (perhaps even limiting the allowable audio quality of then protected rips and files by statute). This would allow them to protect their "pure" digital media while facilitating legal file sharing that tends (in my understanding) to expose more customers to more music which, in turn, drives new album/track sales.
  • Canon is not a tax (Score:2, Insightful)

    by Damnshock ( 1293558 ) on Wednesday June 09, 2010 @09:52AM (#32509670) Homepage

    I've read some comments here talking about the "tax" known as "canon digital" here in Spain.

    I just want to explain that it is not a *tax*. The amount of money got from this "canon" is not used by the goverment but by a *private organization* (CEDRO for books, SGAE for music...).

    What do I want to point with this? Well, the money is managed by a private organization. That is *NO TAX*. They decide what to do with that money and how to give it to the "artists/writers/whatever".

    [angry comment]
    To go even further, 80% of money they get from the "canon" is paid by the law system in Spain. Ain't that ridiculous? Material obviously not used for copyright infridgment has to pay for the "canon"!
    [/angry comment]

    It has also been said that we citiziens pay for every CD/DVD/HD/TV/whatever with canon. That is not *exactly* true. The company that is selling the CD/DVD/... pays for it and, therefore, increseas the price to keep the benefits but the user is *not* paying the "canon". There is a difference legally speaking.

    I just wanted to inform you slashdot readers ;)


  • by h4rm0ny ( 722443 ) on Wednesday June 09, 2010 @09:58AM (#32509744) Journal

    Hell, I'm a man in the street with no industry ties and I think the judges are woefully misguided. Lending a book I've purchased to people within my social circle is not similar to sharing the electronic version of that book with an unlimited number of people online. One, the numbers are vastly different. Two, I am not transferring possession of a single item, restricting its use to one person at a time, instead I am replicating that possession an unlimited number of times and without limiting the use of it to a single active user. Three, I am advertising the product to the whole world.

    Judges in Spain say that sharing online is similar to lending the item to my friends? These are demonstrable and large differences. Judges in Spain must be drunk off their arses.
  • by ThePhilips ( 752041 ) on Wednesday June 09, 2010 @10:36AM (#32510184) Homepage Journal

    An artist or a business creates something and offers it for sale.

    Selling reselling the same thing over and over again? Without any further investments?? And expect to be paid the same money forever???

    It's rather stupid of anybody to expect that to work in long term.

    Concert, shows, etc. That's how artists should earn their living. And in fact many do precisely that as very few can afford proper promotion for anything to sell.

    Pirating commercially sold entertainment is not.

    Entertainment is a service.

    Service (or rather "a copy of service") can't be sold as a bottled water.

    E.g. you can't rip a visit to concert or show. You either was there and seen it - or not.

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

    by foksoft ( 848194 ) on Wednesday June 09, 2010 @10:48AM (#32510350)
    Well and what about singing my own song in a public? Yes, these extortionists are collecting money even from performance of your own stuff. Just in case you eventually join them.
  • by testadicazzo ( 567430 ) on Wednesday June 09, 2010 @10:55AM (#32510462) Homepage
    Let me clarify:

    First: Primarily my argument disputes the copryight oligarchist argument that copy==theft, and intends to use an existing institution (libraries) which are well respected, to obviate the emotional association the oligarchists are attempting to establish with their copy==theft propaganda campaign.

    Second: who says the impact of a local library on sales is negative (I'm assuming that you mean a reduction in sales of x%). This is a completely unwarranted assumption. I'm an avid library user, but my library use does not have a negative effect on my purchasing of media. Quite the opposite in fact. On the other hand, it does allow people access to more culture and information and culture than they could otherwise afford. This enriches us all. Oh hey, look, the same arguments apply to file sharing (I'm an avid file sharer, but it doesn't affect the amount I spend on media at all .

    Third: While libraries and copying might negatively impact sales, the amount of "harm" done by their existence has to take into account the totality of their effects. They increase our net cultural and intelectual wealth, by providing information and culture to people regardless of how much they can afford them. They provide new mechanisms for the propagation of culture and information, freeing us from the necessity of oligarchal, profit motivated distribution firms. They provide small artists, intelectuals and creators a much more level playing field, allowing ideas and culture which are less marketable, less acceptable to the oligarchists (who act as defacto, dollar oriented censors). This gives us a richer, more vibrant culture. It also allows unestablished creators more access to revenue. These benefits have to be weighed against the "harm" of reduced sales and profit for the big mass media creators and publishers.

    If copyright weakens, shortens, declines, or disappears entirely, incentives for creation won't disappear, they will simply change. I personally believe they will change for the better, but trying to justify that belief would be a long discussion, and full of conjecture. The above statements are however firmly grounded in objective, testable fact.

  • by Golddess ( 1361003 ) on Wednesday June 09, 2010 @11:10AM (#32510646)
    I know that you're trying to be funny, but since Dollar is the currency, that includes $100 bills.

    It'd be like saying "any currently used yen paper note", but for some reason, restricting it to 1 yen paper notes.
  • by Anonymous Coward on Wednesday June 09, 2010 @12:01PM (#32511584)

    I made the original comment. You still don't get it. In Spain the tax is NOT 'just in case' you copy. The tax gives us the right to lend whatever we bought. No one is saying you are a pirate. Is it clearer now? Spain or any other country would be a reign of terror if people were punished before a crime was commited, right?

    OTOH if you also pay taxes on blank media. Why are then the Canadian RIAA equivalent prosecuting P2P? What rights do you get with that tax? That's pretty twisted, paying twice, when you buy the disk and when you get thrown in front of a judge, no?

  • by mcgrew ( 92797 ) * on Wednesday June 09, 2010 @01:58PM (#32513596) Homepage Journal

    This decision highlights the pervasive anti-commercial bias in society.

    I'm not sure what you mean by that; obviously someone did, as you're moderated insightful. Maybe I didn't get enough coffee this morning, or sleep last night.

    What anti-commercial bias? It seems this society worships commerce; people will posit that free = useless, and sharing is a bad thing (contrary what our mothers in my old generation taught us), and that "*there's no such thing as a free lunch". If there's a pervasive bias, it seems to me to be a pro-commercial bias.

    Commercial sharing involves sharing the same works to the same people. It has the same demand-killing effects that non-commercial sharing does.

    No, it doesn't -- commercial "sharing" isn't sharing, it's selling. If you buy a bootleg CD, that IS a lost sale to the CD's distribution chain; whoever you give the money to gets money that rightfully belongs to the CD's creator, while if you're not paying for it they've lost nothing. If you were going to buy it, you'ld buy it. If you think it has value, you'll pay for it.

    The only real difference I can see is that the artist, unlike with non-commercial sharing, might actually be able to compete with the non-vanishing price point of commercial sharers. If anything, commercial sharing is better for artists than non-commercial sharing.

    I'm wondering if I'm reading it backwards, or if you wrote it backwards, because it's backwards. Noncommercial sharing helps the artist by getting him noticed, while the commercial sale of counterfeits is in fact a type of theft -- if you gain money that's rightfully mine, you've stolen from me. If you copy something of mine I've lost nothing.

    Why is it so much worse for a person to receive an ill-gotten stream of money than, say, an ill-gotten stream of free entertainment?

    I think I answered your question. A download is not a lost sale, while sale of a counterfeit is a lost sale.

    * If there's no such thing as a free lunch, how do rabbits eat?

1 1 was a race-horse, 2 2 was 1 2. When 1 1 1 1 race, 2 2 1 1 2.