File Sharing Ruled Legal In Spain

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."

What you don't know...

[kinocho]

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"

[jezor]

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]}

Re:Comparison invalid

[Jussi K. Kojootti]

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.

Re:Filesharing is theft. Plain and simple.

[Mister Whirly]

This is a totally old troll rant posted many times before. You all got suckered in again dammit...There is no record store people...

See - http://apple.slashdot.org/comments.pl?sid=160324&c id=13420069 [slashdot.org] and http://yro.slashdot.org/comments.pl?sid=187189&cid =15444081 [slashdot.org] here and http://slashdot.org/comments.pl?sid=171333&cid=142 69664 [slashdot.org]

Not quite true

[Garabito]

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.