A Spanish judge has created something of a storm in the country's music industry by ruling that an unnamed man cannot be prosecuted for sharing music online, despite the fact he did so without the permission of the owners of the content he shared. The 48 year old man was being pursued by the state prosecutor's office with the support of two music distribution associations after he downloaded songs from illegitimate sources and then allegedly offered to make copies of the tracks available on CD through email and chat rooms.
But Judge Paz Aldecoa said last week that there was no proof the defendant had made profit from distributing CDs and, more importantly, that Spanish copyright laws did not allow for people who download music for personal use to be "punished" or "branded a criminal" - prosecutors were looking for both a fine and custodial sentence for the defendant's alleged actions. Judge Aldecoa added that doing so "would imply criminalising socially admitted and widely practised behaviour where the aim is not to gain wealth illegally but to obtain private copies".
Victor Domingo, the head of Spain's internet user association Internautas, welcomed the ruling, telling Abc newspaper: "If the purpose of the copy is not to gain wealth there is no way that it can be considered illegal. It would be a lot different if someone downloaded in order to sell on".
However, the Spanish recording industry association Promusicae hit out at the ruling, and pledged to appeal it. The association's Antonio Guisasola told reporters that internet users in Spain should not assume that the ruling means downloading music via P2P networks was now a legal. He told reporters: "I have been with both the justice minister and the culture minister today and they are both quite clear that peer to peer is illegal".
Whether the ruling will really set any kind of long term precedent regarding file sharing, in Spain or beyond, is unclear but probably doubtful. It's not the first time a court has questioned the power of domestic copyright law in banning the sharing of music online where no profit is being made, although the courts have been going more in favour of the content owners of late, in civil cases at least. But where courts do limit the power of existing copyright law in battling online file sharing, there is normally political support to make those laws more explicitly anti-P2P - even if it takes time to translate that political support into new legislation, long term content owners will probably win the day.
That said, judges, especially in criminal cases, will frequently remain cautious of implementing even explicit anti-P2P laws when the implications are wide spread - ie because so many people casually share music online, prosecuting one casual file sharer basically turns everyone into criminals. Those concerns were at the heart of Aldecoa's ruling, and whatever political support they have, the content industries and prosecutors will need to carefully select at what level they should use the courts to protect copyrights, so as to protect the creators' interests without seeking rulings that set too wide a precedent. To be fair, most of the trade bodies involved in the fight against P2P have been aware of that sometime, meaning they do tend to pursue only legally sound (if, in our opinion, ultimately futile and commercially unnecessary) litigation.