All the tough talking about forcing the internet service providers to act to stop illegal file sharing tells us one thing for certain - P2P file sharing is still quite a hot topic in the digital music arena, and just in case further proof was required, there were a number of P2P stories doing the rounds yesterday.
Firstly, word has it the Spanish courts are due to rule on a long running legal dispute between Spain's record industry body, Promusicae, and internet service provider Telefonica. The former is trying to force the latter to reveal the identities of individuals who are accused of wide spread illegal file sharing - the record companies' monitoring of such sharing, of course, only revealing the IP address used by the file sharers. As much previously reported, the ISPs have always been generally unwilling to reveal the identities of file sharers unless forced to do so by the courts - generally citing privacy rules as their reason for resisting requests for such information.
The willingness of the courts to force the ISPs to reveal the identities of file sharers - even when the evidence of such file sharing is compelling - has varied greatly from country to country. Here in the UK the courts, providing the evidence stacks up, have generally demanded the ISPs reveal file sharers' identities - and have not treated doing so as being particularly controversial. In other countries, however, the courts have been less willing to help, often ruling that their native copyright laws - which normally predate the internet - are too ambiguous to enable such information exchange, especially in an environment where protecting the privacy of internet users is such a hot topic.
The Spanish courts have been among the least helpful in assisting with the record companies' attempts to target individual file sharers with litigation, at one point more or less saying that under Spain's current copyright laws individuals cannot be sued for illegally distributing content online at all. In the Telefonica case the Spanish court requested guidance from the European Courts as to whether European regulations demanded ISPs to hand over information in cases like that being pursued by Promusicae. In an advisory note last summer the European Court's Advocate General said, in civil cases like this one, no they didn't. It's with that note in mind that the Spanish court will make its judgement on the matter this week and, given the Advocate General's advice, it's expected that they will find in Telefonica's favour.
Doing so will mean various things. Firstly, for the Spanish music industry, who are suffering more than most from piracy and declining record sales, it will be bad news, essentially rendering them unable to take action against individual filesharers (certainly through civil litigation routes). Secondly, because of the European dimension to the case, some wonder whether such a ruling could be used as a legal argument in favour of ISPs in similar cases in other European Union countries, especially those where, unlike the UK, there is not an existing precedent that ISPs should be forced to reveal filesharers' identities in civil cases.
But, on a third level, success for Telefonica in this case may work to the wider record industry's benefit long term, given that many record companies are already beyond the 'suing individual filesharer' thing and concentrating their efforts on wider reforms to force ISPs to be more proactive in this domain. The record companies could argue, should Telefonica win, that this is another example of copyright law in a Western country simply not coping with the issues of internet piracy, and that it is further proof as to why new legislation is required, preferably at a European level, and preferably forcing ISPs to take on the policing role described by McGuinness in Cannes yesterday.