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Legal
Spanish judges compare file-sharing to book lending
By CMU Editorial | Published on Thursday 10 June 2010
More file-sharing, and those following the worldwide fight against online piracy will remember that the Spanish courts have not been overly kind to content owners trying to tackle file-sharing through copyright litigation. Whereas courts in the UK, US, Australia, Sweden and elsewhere have, with little controversy, always deemed unlicensed file-sharing to be illegal, Spanish judges have generally said that Spain’s copyright laws are not currently worded in a way that such a judgement can be reached.
And despite efforts by the Spanish government to crack down on online piracy, for the time being that tendency remains unchanged. This week a court in Madrid compared file-sharing to the lending of books when it threw out a criminal case against the people behind a Spanish file-sharing site called CVCDGO.com, which was shut down by police five years ago.
In their ruling, the three judges hearing the case noted that “since ancient times there has been the loan or sale of books, movies, music and more. The difference now is mainly on the medium used – previously it was paper or analogue media and now everything is in a digital format which allows a much faster exchange of a higher quality and also with global reach through the internet”.
To be fair, the actual ruling here wasn’t really concerned with whether or not file-sharing itself was legal or illegal. Rather the judges were asking whether or not the owners of CVCDGO.com were guilty of so called contributory infringement or any sort of fraud. Because CVCDGO.com didn’t host any of the content its users shared, and because they didn’t charge for the service directly (though they did sell ads), the court decided that neither of those charges stood.
While in the UK the courts have been pretty clear that individuals downloading unlicensed music via P2P networks are guilty of infringement, whether or not the operators of P2P services would themselves be liable for infringement (‘authorising infringement’ under English law) has never been tested in court.
The (only partly successful) lobbying efforts by the UK record industry to have that issue addressed in the Digital Economy Act earlier this year suggests many lawyers aren’t confident an English court would make operators of a CVCDGO.com style service themselves liable for infringement, even though courts in the US, Sweden and Australia have. Certainly efforts to do the founder of the Oink file-sharing community for fraud failed.
But still, in a country where courts have previously ruled that individuals who file-share aren’t liable for copyright infringement, to have three judges now comparing unlicensed downloading to people lending books to friends doesn’t send out anything like the sort of message the film and record industries want web users to hear. Spanish content industries will be hoping the country’s government’s promises to introduce new digital copyright laws come good sooner rather than later.
