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Judge Reaffirms P2P Still Legal

Court system continues to defy copyright holders, ruling once again that noncommercial file-sharing in the country is legal, and also that links to infringing material is as well.

For some time now Spanish judges have consistently ruled in favor of file-sharers, finding over and over that noncommercial P2P – file-sharing without motivation of profit – is legal in that country.

As far back as 2006, Spanish judges have ruled that since the there is “no talk of money or any other compensation beyond the sharing of material available among various users” that “no offense meriting penal sanction has been committed.”

Raul N. Orejuda Garcia, Magistrate Court judge of Mercantile number 7, then ruled last year that P2P transfers are not one of the “clear and specific behaviors that the law forbids, in particular reproduction, distribution and public communication without authorization.”

Fast forward to a few days ago and the same judge, Raul N. Orejuda Garcia, Magistrate Court judge of Mercantile number 7, reaffirmed his earlier ruling.

The case case was part of a suit brought by a local music industry group, SGAE (Sociedad General de Autores y Editores) against eD2K website elrincondejesus for alleged copyright infringement on the site. The owner of the site, Jesus Guerra Calderon, rightly pointed out that it only provided links to content much like Google or any of the other search engines out there.

“As you know never had advertising (or has now),” he said at the time. “I’m innocent and the only thing that I have done is provided links to other sites, like thousands of search engines in the world.”

Judge Garcia once again agrees.

“The system of links constitutes the very basis of the Internet and a multitude of sites and search facilities (such as Google), allowing the technical possibility of doing precisely what this procedure is trying to prohibit, which is linking P2P networks,” he said in his ruling.

He added that the owner “does not receive any money directly or indirectly related to the service offered” because the website was open to all, free and no advertising.

Judge Garcia determined that the country’s Copyright Act ultimately discusses the legality of the source not the access “so that most users of these P2P networks acted legally because they have concluded a lawful and valid contract for a fee to a service provider network.”

In the long run it may not matter, at least for file-sharing-related websites like Calderon’s. The govtapproved new anti-piracy legislation back in January that will allow a judge with the National Audience, the country’s federal court, to close or block websites accused of facilitating copyright infringement within 4 days as compared to the current year-long process.

However, the law is still still dramatically different from other countries like France and South Koreain that it targets P2P sites and not users.

In fact, Joan Navarro, head of the Coalition of Industries and Creators of Content, previously referred to this effort as a “positive step.

“They are going after the producers of the piracy, those who spread works without permission from the authors,” she said at the time. “Not the users, which is the case in France and the UK”

So all in all Spanish file-sharers are still in quite an enviable position.

Stay tuned.


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