Slashdot Mirror
Spanish Judges Liken File Sharing To Lending Books
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."
It's no worse an analogy than calling copying 'theft.'
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.
It's straight to the top of the "priority watch list" for you, Spain.
Why would anyone engrave "Elbereth"?
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.)
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.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
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.
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.
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.
The Christian religion has been and still is the principal enemy of moral progress in the world. -- Bertrand Russell
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.
“Common sense is not so common.” — Voltaire
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.
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.
All hope abandon ye who enter here.
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.