Spanish Court Reverses Course: Says Linking To Infringing Material Is A Crime

from the political-maneuvering dept

Wed, Oct 19th 2011 7:04am — Mike Masnick

We've noted over and over again that Spanish courts have quite reasonably interpreted Spain's copyright law to mean that a site that just links to infringing content is not liable for the infringement. This makes a lot of sense. You should not blame a third party for the actions of its users. Yet the entertainment industry has made these rulings out to be an absolutely horrible miscarriage of justice, and have -- with the support of the US government -- pushed hard for draconian new copyright laws within the country. While public outcry (and leaked State Dept. cables showing that the US was really behind it) helped derail the effort the first time around, supporters are still trying to push it through.

However, while the existing law stands, it's a bit surprising to see that one Spanish court has gone completely in the other direction and found the operators of a couple sites to be guilty of criminal copyright infringement, for which they may face a year in jail, in addition to fines. The lawyer for one of the guys suggests that this ruling is a result of politics, not the law. It's hard not to think that way given how it appears to fly in the face of most other decisions in Spain. I would imagine that there's still going to be an appeal in the case before it's really settled.

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Filed Under: copyright infringement, crime, international politics, linking, spain

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PaulT (profile), 19 Oct 2011 @ 7:18am

Before the trolls come in to attack the source or call people names, I'll just repeat what I said here many times before:

You want Spanish residents to stick to legal content? Allow them access to legal alternatives before you start dragging them into court. Spotify's been a good start, now start licencing more services. There's still no legal access or alternative to Hulu, Netflix, Pandora, and so on.

It's a shame (though not surprising) that politics seem to have overridden common sense rulings. But, before the industry tries buying more judges, maybe they should build legal alternatives for people to use. After that's been done, then we can talk about piracy.
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Anonymous Coward, 19 Oct 2011 @ 7:46am

Re:
"You want Spanish residents to stick to legal content? Allow them access to legal alternatives before you start dragging them into court."

Paul, it is the chicken and the egg. They are so far entrenched in free illegal content, that making legal content available for a price is just a waste of time and effort.

"But, before the industry tries buying more judges"

Are you suggesting the judge was bought off?
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Anonymous Coward, 19 Oct 2011 @ 7:54am

Re: Re:
"They are so far entrenched in free illegal content, that making legal content available for a price is just a waste of time and effort."

Why? There is obvious demand and a market for it. Or is it just cheaper, easier, and more profitable to sue?
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Anonymous Coward, 19 Oct 2011 @ 7:54am

Re: Re:
"Are you suggesting the judge was bought off?"

Paul might or might not be but I'm willing to say that the judge was definitely bought off.
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WysiWyg (profile), 19 Oct 2011 @ 7:58am

Re: Re:
"They are so far entrenched in free illegal content, that making legal content available for a price is just a waste of time and effort."

Ah, yes, the good old "you can't compete with free" bullcrap. Lucky for you there aren't any international companies making money from offering music online, since that would prove you wrong then.

Quick question; if it works for music, why not for movies/tv shows?

And last, but not least, my battlecry: "WHY DON'T YOU WANT MY MONEY!?".

;-)
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out_of_the_blue, 19 Oct 2011 @ 8:00am

Crucial element: "intended to profit via advertising".
"While the court agreed that neither site actually hosted any infringing content, it noted that the defendants organized and made available links which enabled free downloads of copyright works, from which they intended to profit via advertising."

As Cyndi Lauper said in a song, "Money changes everything." It's certainly a nice bright line test in piracy cases.
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Anonymous Coward, 19 Oct 2011 @ 8:07am

Re: Re: Re:
Please expand on this. Can you tell me any interenation companies that are selling content in Spain and making profits?
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PaulT (profile), 19 Oct 2011 @ 8:13am

Re: Re:
"They are so far entrenched in free illegal content, that making legal content available for a price is just a waste of time and effort."

Only fools like you think that. I have money in my pocket, ready for whenever Netflix are allowed to offer me their service. It's staying there until Netflix, or some reasonable alternative, is ready to take it. Your industry's loss, but piracy has nothing to do with it.

You don't think that maybe, just maybe, if a decent alternative to piracy was available, the levels would stay the same? really?

"Are you suggesting the judge was bought off?"

Unless the judge is honestly reading the law is the completely opposite way to all before him, then yes. The move seems politically motivated, and lobbying/corruption tends to be the way that happens.
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Anonymous Coward, 19 Oct 2011 @ 8:18am

The tide is turning against freetards and pirates
Having these links to illegal material is wrong
Everyone needs to be aware of the impact of this.

Go get your shows/songs from legal sites
Any excuse not to do this
Make me cross with the free mentality
Enjoy fines/prison.

/s
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Anonymous Coward, 19 Oct 2011 @ 8:19am

I agree, judges can be bought off, especially when the judge has to run for reelection. Judges who have to run for reelection are nothing but a politician in a robe. A lot of the judges who don't have to run in elections are also unfortunately becoming more and more like a politician in a robe overtime.
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PaulT (profile), 19 Oct 2011 @ 8:19am

Re: Re: Re: Re:
"Can you tell me any interenation companies that are selling content in Spain and making profits?"

Amazon.es has recently opened (missing digital services such as music and movies streaming/purchases), but it's a start. Early days, but it's doubtful that a company like Amazon would open a Spain-centric store if they didn't see a market.

iTunes has a Spanish store, as do 7digital (although they are extremely expensive - often double or more than the price of the UK stores. Not a good move in a country with over 20% unemployment and a typically very low income among the young).

Spain was one of the first countries where Spotify offered their service, well before they launched in the US.

That's about it, though. Sadly, there's still no legal online TV, movie streaming, internet games/movie rental, etc. and very little choice of online sources within the country. I tend to import most of my physical media from the UK because there's so little local choice.
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:Lobo Santo (profile), 19 Oct 2011 @ 8:21am

Re: Re: Re: Bought Off
There's also the possibility the judge was bought off indirectly--via propaganda/"information"/anti-piracy campaigns.

Never underestimate the value of good advertising to sway peoples' illogical opinions~!
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out_of_the_blue, 19 Oct 2011 @ 8:28am

Re: Re: Re: "Ah, yes, the good old "you can't compete with free" bullcrap."
@ "WysiWyg":
Okay, take Mike's own example from his "can't compete" piece.

YOU make a movie that costs $100 million. Now let /me/ take it and distribute it online. My costs are of course nearly zero (income may be too, irrelevant), especially if the actual host is unrelated 3rd party. Now, YOU are out $100M of "sunk (or fixed) costs". Tell me EXACTLY how you're going to recover that, while competing with FREE.

No, music won't work, unless you example a real tune that costs $100M. Entirely different scale: music costs almost nothing, so is easy to pay off indirectly via advertising.

I've asked Mike to explain that HUGE LIE in his example and only got attempted diversions: Mike mentions the cost and then just sweeps it aside, only way to make his "marginal cost" pricing work.
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The Groove Tiger (profile), 19 Oct 2011 @ 8:30am

Re:
Is that some sort of poem?
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Anonymous Coward, 19 Oct 2011 @ 8:32am

Re: Re: Re: Re: "Ah, yes, the good old "you can't compete with free" bullcrap."
i can get an idea of how you can make money but again if i tell you you wont take it and say are lies >>, or as you are anti share i will keep the idea because you dont want to be a pirate right i mean you dont like to take ideas or somthing else for free :)
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PaulT (profile), 19 Oct 2011 @ 8:34am

Re: Re: Re: Re: "Ah, yes, the good old "you can't compete with free" bullcrap."
"Tell me EXACTLY how you're going to recover that, while competing with FREE."

The same way they're doing now. Or is the fact that this is shaping up the being the biggest box office year in history irrelevant?

They could of course make more money by offering better products and services than they are at the minute. But, please feel free to explain how they're not able to "compete with free" when they're able to break box office records at a time when every movie is pirated.
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Anonymous Coward, 19 Oct 2011 @ 8:38am

Re: Re: Re:
Paul, the biggest mistake anyone can make is to take their personal experience and apply it to everyone else around them. You personally (as an expat living in Spain, I gather) would appear to have the money and the desire. But in a country with high unemployment, do you honestly think that the average Spanish citizen has money in their pockets to pay for Netflix?

Think about it: Spain is the western country with some of the highest rates of cable and sat TV signal piracy, and a court system that up until this point has been very lax in lending any legal support in fighting it. The services have been available, they are just unwilling or unable to pay for them.

I cannot see a pay for use service coming to Spain and making major inroads into the market.

Amazon? I am betting that they are selling mostly books (one of the last content bastions that hasn't been killed by piracy). Care to confirm or correct?
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PaulT (profile), 19 Oct 2011 @ 8:38am

Re: Re: Re: Re: Bought Off
Oh, certainly "bought off" doesn't necessarily mean that an RIAA lobbyist wandered into his office with a bag of money. However, unless his reasoning is based on some new factor never seen before (ootb makes a rare reasonable point above about there being a stated direct profit motive), it's not hard to see that he was most likely coerced in some way by the industry.
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out_of_the_blue, 19 Oct 2011 @ 8:50am

Re: Re: Re: @"PaulT": "a decent alternative to piracy":
You quoted: "They are so far entrenched in free illegal content, that making legal content available for a price is just a waste of time and effort."

To paraphrase your opening sentence: Only a barking mad freetard wouldn't see that as obvious.

You're sort of vaguely arguing for lower prices: with you up to there, BUT a pirate can easily "consume" far more entertainment than /can/ pay for. Your money in /your/ pocket may be a loss to the industry (glad to see you admit that NOT getting paid for content IS a loss), but for pirates who simply don't have the money -- I'd say $20 or more of losses per day for some pirates isn't an unreasonable figure -- then even lower prices aren't going to accommodate them.

Then there's the hand-off multiplier of the downloader passing it on to others, making actual losses much higher.

Then there's the psychic value to calling oneself a "pirate", not easily given up, so I'd expect piracy to continue -- for those well below the line you want to draw, who can afford entertainment now and then IF priced right.

You already have a "decent alternative" to piracy! Don't consume the content! It's the only legal and moral way to inform sellers of how you value their work product. If you don't agree with the price asked, you've NO right to take the product anyway, not even if legal ways are inconvenient and you're "ready to pay".
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PaulT (profile), 19 Oct 2011 @ 8:52am

Re: Re: Re: Re:
"(as an expat living in Spain, I gather)"

You know, rather than guessing, you could click on my profile, which hasn't changed since I created it. All you need to know is there...

"But in a country with high unemployment, do you honestly think that the average Spanish citizen has money in their pockets to pay for Netflix?"

So, what's the point of these court actions then? If people can't pay �20 for Netflix, they're hardly going to be able to buy all that music they downloaded. What money is "lost" in this situation if people can't buy the product to begin with?

If your problem is the "rogue" service providers making money, why aren't legal services doing that since it's so lucrative?

"I cannot see a pay for use service coming to Spain and making major inroads into the market."

So, Spotify is a figment of my imagination?

We'll see. No official word is out, but there's been strong rumours that Netflix will launch here next year.

"Spain is the western country with some of the highest rates of cable and sat TV signal piracy,"

Citation?

" a court system that up until this point has been very lax in lending any legal support in fighting it"

No, a court system that hasn't bowed to the ridiculous demands of an industry that would rather kill free speech than provide legal services.

"Amazon? I am betting that they are selling mostly books (one of the last content bastions that hasn't been killed by piracy). Care to confirm or correct?"

Check for yourself you lazy asshole. www.amazon.es

Licencing (as ever) is preventing most digital services thus far, but they have a decent physical range from what I've seen.
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out_of_the_blue, 19 Oct 2011 @ 8:57am

Re: Re: Re: Re: Re: "Ah, yes, the good old "you can't compete with free" bullcrap."
@"PaulT":

"THAT" case was a movie costing (someone) $100M which anyone could then offer the same free, identical quality, online. The producer is then competing with his own product while saddled with /costs/ of production.

Your contradiction is utterly empty, then you divert. You CANNOT tell me any details of how to go about competing with your own product while recovering the "sunk (or fixed) costs" of production. Can't be done. That's why Mike's example is a LIE: he can't account for that $100M.

An economist is someone who can figure but can't account.
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Anonymous Coward, 19 Oct 2011 @ 9:01am

Re: Are these the same spanish...
that came to the americas and raped and pillaged?
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Chronno S. Trigger (profile), 19 Oct 2011 @ 9:01am

Re: Re: Re: Re: @"PaulT": "a decent alternative to piracy":
"You already have a "decent alternative" to piracy! Don't consume the content! It's the only legal and moral way to inform sellers of how you value their work product. If you don't agree with the price asked, you've NO right to take the product anyway, not even if legal ways are inconvenient and you're "ready to pay"."

So instead of offering a service that's reasonable to the people that are avoiding piracy and probably convert a few of the pirates, you just claim that it's impossible (despite evidence) and sue the shit out of everyone.

If you are in a position to sway anyone in charge of your company, quit now. If they listen to you, they're heading for a flushing.
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PaulT (profile), 19 Oct 2011 @ 9:02am

Re: Re: Re: Re: Re: Re: "Ah, yes, the good old "you can't compete with free" bullcrap."
"You CANNOT tell me any details of how to go about competing with your own product while recovering the "sunk (or fixed) costs" of production."

So, none of those movies that are making hundreds of millions at the box office while also being pirated are making back their own production costs. Got it.
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Chronno S. Trigger (profile), 19 Oct 2011 @ 9:04am

Re: Re: Re: Re: Re: Re: "Ah, yes, the good old "you can't compete with free" bullcrap."
Haven't we explained to you a million times how to compete with free? I know you've been paying attention because you haven't made that illogical argument for a long time, but you seem to have forgotten.

You don't need PaulT to explain to you how someone can make money in spite of (or even because of) piracy. Just look at Techdirt's history and you will see.
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Atkray (profile), 19 Oct 2011 @ 9:10am

Re: Re: Re: Re: "Ah, yes, the good old "you can't compete with free" bullcrap."
Mike doesn't say give it away,

But since you want a suggestion....

If a major movie studio offered their entire catalog for streaming for $10 a month globally, they wouldn't know what to do with all the money they wouldn't be able to find enough hookers and blow.
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DogBreath, 19 Oct 2011 @ 9:48am

Re: Re: Re: Re: Re: Re: Re: "Ah, yes, the good old "you can't compete with free" bullcrap."
So, none of those movies that are making hundreds of millions at the box office while also being pirated are making back their own production costs.

According to the movie companies own accounting practices, when it comes to reporting truthful income and paying residuals back to actors, their answer is "Yes".

Too bad it's just another lie in their long line of lies that they got OOTB and others like him/her to believe.
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btr1701 (profile), 19 Oct 2011 @ 10:17am

Re: Re:
> Are you suggesting the judge was bought off?

Either that or he's deeply ignorant of the position of the rest of his country's judiciary on this issue.

I'll leave it to you to decide which is more likely.
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Anonymous Coward, 19 Oct 2011 @ 10:37am

Re: Re:
It is safe to say there is a non-zero chance the judge was bought off. Notice this doesn't fall under any sort of slander/libel since I'm speculative about the odds.
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WysiWyg (profile), 19 Oct 2011 @ 10:40am

Re: Re: Re: Re: "Ah, yes, the good old "you can't compete with free" bullcrap."
Overlooking what has already been said, that they do indeed make tons of money as it is, my question is this;

Will they make LESS money by selling the movie online, in a format that is DRM-free and preferably of decent quality?
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Anonymous Coward, 19 Oct 2011 @ 11:28am

Re: Re:
You are wrong. I happily subscribe to Netflix, Hulu, Pandora, and a couple other services. They are convenient; the quality is good; and I don't even mind the commercials.

However, when I want to watch a movie or TV show that is not made available to me when and how I want it, then I will happily 'pirate' it.

So by making their product unavailable, they lose out on my dollars.
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Goyo, 19 Oct 2011 @ 11:34am

Re: Re: Re: Re: @"PaulT": "a decent alternative to piracy":
You already have a "decent alternative" to piracy! Don't consume the content!

Since the "decent alternative" pays as much money as piracy (do you mean copyright infrigment?) to the industry, let's say 0.00$, I wonder why they care so much.

It's the only legal and moral way to inform sellers of how you value their work product. If you don't agree with the price asked, you've NO right to take the product anyway, not even if legal ways are inconvenient and you're "ready to pay".

If "take the product" means "make copies for private use" you're badly wrong. In Spain permission is not legally required to make such copies --and nobody cares about your moral opinions.

OTOH I have nothing to inform sellers, I guess they do their due diligence but it's all their bussines.
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Anonymous Coward, 19 Oct 2011 @ 11:41am

Re: Re: Re: Re: @"PaulT": "a decent alternative to piracy":
You already have a "decent alternative" to piracy! Don't consume the content!

First, 'piracy' is not theft.

So your business model can be summed as "Don't give my customers what they want."

Sounds like a winner.
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Goyo, 19 Oct 2011 @ 12:04pm

Re: Crucial element: "intended to profit via advertising".
Actually the important issue here is not the money but the new view of linking as "public communication".

If linking to content without permission infringes on copyright then almost every web site in the world is infringing. Now if they profit from that and cause damages to right holders they are also criminals, but they are infringing in any case.
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Anonymous Coward, 19 Oct 2011 @ 12:05pm

Re: Re: Re: Re: Re:
"If your problem is the "rogue" service providers making money, why aren't legal services doing that since it's so lucrative?"

Quite simply, they are only "lucrative" to people who have little or no money to start with, and only make money because they aren't paying for the products they are using to promote their business.

"Check for yourself you lazy asshole. "

Go fuck yourself. If you can't be civilized, don't bother playing. See? You went all insulting again, without anyone insulting you. You lose.
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Anonymous Coward, 19 Oct 2011 @ 12:07pm

Re: Re: Re: Re: Re: @"PaulT": "a decent alternative to piracy":
"So instead of offering a service that's reasonable to the people that are avoiding piracy and probably convert a few of the pirates, you just claim that it's impossible (despite evidence) and sue the shit out of everyone."

Where is the evidence? I am not seeing any.

Pirate sites making a few quid on ad spaces isn't a business model - it's a joke.

Where is the evidence?
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Anonymous Coward, 19 Oct 2011 @ 12:09pm

Re: Re: Re: Re: Re: @"PaulT": "a decent alternative to piracy":
"So your business model can be summed as "Don't give my customers what they want.""

When the customer's desired business model is "give me everything, and give it to me for free or as close to free that I can't tell the difference", the answer is "fuck off" and it ends there.

When the consumer is willing to come to work for the companies for free, perhaps we will have a discussion. Until then, I doubt anyone wants to be in a marketplace that just doesn't pay out.
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Goyo, 19 Oct 2011 @ 12:25pm

Re: Re: Re: Re: Re: Re: @"PaulT": "a decent alternative to piracy":
The answer can be whatever you want, but "fuck off" is not going to give you more customers nor more money.
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PaulT (profile), 19 Oct 2011 @ 12:47pm

Re: Re: Re: Re: Re: Re:
"Quite simply, they are only "lucrative" to people who have little or no money to start with, and only make money because they aren't paying for the products they are using to promote their business."

In other words: it's hard so why bother trying? As evidenced by ongoing sales of cinema tickets, DVDs, etc., people are still willing to pay for the real thing. Pretending you can't compete with "free" is one of the reasons why you're failing in this country.

"Go fuck yourself. If you can't be civilized, don't bother playing. "

Maybe the insult was uncalled for, but come on. You make a blind assumption about what's on offer and then tell ME to explain to you what's on the site instead of taking the 2 seconds of research to look for yourself. Sorry, but if you're too lazy to go to Amazon.com and click on the "Spain" link at the bottom (assuming you didn't already know the address), why should I trust you on all of your other assertions - which you refuse to back up.

Again, the usual TD troll playlist. Make blind assertions, then cherry pick and ignore points on others' posts so you don't have to back up your own claims. I'm yet to see you people back up one of your claims on this thread, yet you want me to accept my freedoms being eroded before the industry even tries to offer me a product to buy? Screw that.
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Anonymous Coward, 19 Oct 2011 @ 12:48pm

Re: Re: Re: Re: Re: Re: @"PaulT": "a decent alternative to piracy":
Really, can you show me where the customers have said "give me everything, and give it to me for free or as close to free that I can't tell the difference"? I'd so love to see that.

Most of the customers (and no, not pirates/file sharers) I've discussed things with have said, just give us the content, restriction free, at a reasonable price and in a convenient manner, and we'll hand over our money. Ala Netflix/iTunes. (But without the limitations.)

If you're saying "fuck off" to ACTUAL customers, then you have no one to blame but yourself for your losses/shortcomings. Ignore pirates/file sharers. Focus on the ones who want to pay. If you're not putting things out there in a reasonable manner for them, they'll go elsewhere.

This "do without" thing is a crock. I can do without. But if I can get what I want elsewhere, or cheaper, or whatever, I more than likely will. (And no, I personally DO NOT download a thing. Nor feel a need to. But I do understand some of the reasons behind it, without acting douchey about it. If you're not willing to even bother to meet the demand, on any terms and in anyway, and someone else is, you're only f*cking yourself over. Not saying you're doing that, that's just the way I see the matter.)
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Keith_Emperor_of_Penguins (profile), 19 Oct 2011 @ 1:28pm

So Roger Ebert going to jail now?
He keeps linking to The Pirate Bay. Clearly a pirate dirtbag if there ever was one.
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Christopher (profile), 19 Oct 2011 @ 1:29pm

Re: Crucial element: "intended to profit via advertising".
Profit via advertising? Or just cover their server bills with the money that they earn?
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btrussell (profile), 19 Oct 2011 @ 4:16pm

Supreme Court of Canada Stands Up for the Internet: No Liability for Linking
"I would conclude that a hyperlink, by itself, should never be seen as �publication� of the content to which it refers."
http://www.michaelgeist.ca/content/view/6069/125/
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Anonymous Coward, 20 Oct 2011 @ 6:00am

Re: Re: Re: Re: Re: "Ah, yes, the good old "you can't compete with free" bullcrap."
For the first month. In month two, there would be an amazing amount of perfect digital copies on P2P networks, and nobody would pay the $10 anymore.

Problem solved.
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PaulT (profile), 20 Oct 2011 @ 6:23am

Re: Re: Re: Re: Re: Re: "Ah, yes, the good old "you can't compete with free" bullcrap."
....because nobody has ever paid for something when there's a perfect copy already available online. Really?
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