Once Again, File Sharing Tools Declared Legal In Spain Because They're Just Tools

from the good-to-see dept

Fri, Apr 11th 2014 11:11am — Mike Masnick

For many years, we highlighted how Spain was a country that actually had much more reasonable copyright laws, in that it did not try to blame third-party tool makers for the actions of their users. In the 2009/2010 time frame, there were a series of rulings that rejected concepts like secondary liability for tool makers, on the same basic principle as the US Supreme Court decided the Betamax case years ago: it's inappropriate to blame the tool/service maker for how the tool is used. If users are using a tool to infringe, that's not the fault of the tool maker.

Of course, the entertainment industry flipped out that Spain would have such reasonable copyright policies. They started a scorched earth campaign, insisting they would pull out of Spain entirely. And, of course, they whined to the USTR, which started putting Spain on the "naughty list" of the Special 301 report. US diplomats in Spain then started putting tremendous pressure on the Spanish government to pass draconian copyright laws. In fact, some of the State Department cables leaked via Wikileaks basically showed that the US entertainment industry wrote the law and handed it to the Spanish government, telling them to pass it.

Public opposition to the law was massive, and even the head of the Spanish Film Academy quit to protest the law, noting that the new law was anti-consumer and no way to embrace the future. And yet, in early 2012, under tremendous pressure, the Spanish government adopted the law. And, of course, because ratcheting up copyright laws never actually stops infringement, it was barely a year before the US entertainment industry kept on complaining.

While Spain was temporarily dropped from the Special 301 list, the legacy entertainment industry demanded it be put back on. So, once again, a year ago, the government started pushing even more draconian copyright laws, flat-out admitting that the only reason they were doing so was to try to stay off the USTR's Special 301 naughty list. And, of course, late last year, new more draconian copyright laws were put in place.

Given all that history, it's fascinating to see a new ruling concerning a Spanish file sharing software called Blubster. As TorrentFreak reports, after all those legal shenanigans by the legacy American entertainment industry, the Spanish courts still seem to recognize how ridiculous secondary liability is for the creators of tools. Despite a massive lawsuit from the record labels, a Madrid court of appeals has upheld a lower court decision that Blubster and related programs from MP2P Technologies are neutral and not liable for infringement. This is a huge victory not only for the company's founder, Pablo Soto, but for the Spanish public and basic common sense around copyright law:

“[Soto's] activity is not only neutral, and perfectly legal, moreover it is protected by article 38 of our Constitution,” the Court wrote in its ruling.

In case you're wondering, Article 38 of the Spanish Constitution protects "free enterprise within the framework of a market economy." The court rejected various theories brought by the labels, including the idea that file sharing software was "looting" or that it was "unfair competition." It noted that since MP2P wasn't in the recording business, it wasn't "unfair competition" and, importantly, that it's simply ridiculous to blame the service provider for the actions of its users.

Of course, given the history we outlined in the first few paragraphs, it doesn't take much of a fortune teller to predict what's likely to happen next. Expect the pressure to ratchet up, yet again, for another change to Spanish copyright law.

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Filed Under: blubster, copyright, pablo soto, secondary liability, spain, special 301, third party liability, ustr
Companies: mp2p

22 Comments

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DannyB (profile), 11 Apr 2014 @ 11:58am

If tools are legal
Isn't Mega Upload just a tool?
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- Anonymous Coward, 11 Apr 2014 @ 12:54pm
  
  Re: If tools are legal
  Yes and they complied with the "universal" american law DMCA.
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  - PRMan, 11 Apr 2014 @ 1:21pm
    
    Re: Re: If tools are legal
    Except in the one case where they were forbidden to by the US government...
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    - Anonymous Coward, 11 Apr 2014 @ 1:44pm
      
      Re: Re: Re: If tools are legal
      Indeed, the FBI informed Megaupload that it was investigating a case against Ninja and that Megaupload was told by the FBI not to draw attention to Ninja of the investigation and to keep the files for the case. Megaupload did not delete the files as it would have drawn attention to the investigation and if they did delete the files then they surely would have faced action against the FBI for destroying evidence in the Ninja Case.
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      - Bergman (profile), 11 Apr 2014 @ 9:51pm
        
        Re: Re: Re: Re: If tools are legal
        Yup. And then that retention of files was used by the feds as "proof" that Megaupload was willfully breaking the law -- because compliance with the law would require they be taken down.
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        Anonymous Coward, 12 Apr 2014 @ 5:33am
        
        Re: Re: Re: Re: Re: If tools are legal
        Indeed, Megaupload was told by the FBI to retain those files for the investigation on Ninja the very same files that the DOJ is using in their criminal case against Megaupload that the company willfully knew that there was infringement but did absolutely nothing to delete the files but the DOJ omits the fact that they (DOJ) knew that the FBI told Megaupload to retain those files for an investigation and not to do anything to the files to draw attention to Ninja.
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- Anonymous Coward, 11 Apr 2014 @ 1:55pm
  
  Re: If tools are legal
  The USTR is a "tool".
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  - G Thompson (profile), 11 Apr 2014 @ 11:10pm
    
    Re: Re: If tools are legal
    So you're saying they are legal?
    
    Shame on you... For shame!!!!!! ;)
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anon, 11 Apr 2014 @ 12:39pm

naughty
Doing what they were told by the copyright industry did not get them off the list they were still told to do much more, and I suspect they knew they would be forced to do much more, when there is no way to satisfy a group all you can do is ignore them and let them do their best, I am sure Spain will fare much better when the rest of Europe sides with them than they would follow the demand made by a small group of people that believe they are more important than they think.
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- Anonymous Coward, 11 Apr 2014 @ 1:52pm
  
  Re: naughty
  Spain is trying the wrong way to get off the naughty step. Never mind passing the legislation ustr wants. Threaten to pass legislation they don't unless removed. "If we can't get off by doing what they asked, let's do something where we will really deserve to stay on"
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Anonymous Coward, 11 Apr 2014 @ 1:00pm

Waaah! Daddy US, Spain doesn't want to play by my rules! Waaaah! Make it change!
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Anonymous Coward, 11 Apr 2014 @ 3:32pm

Handguns, I mean killing tools, declared legal in England because they're just tools.

Oh wait no they weren't
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- Anonymous Coward, 11 Apr 2014 @ 4:28pm
  
  Re:
  More accurate: hammers declared legal in England because they're just tools.
  Both hammers and file sharing software have plenty of other applications besides the illegal
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  - Anonymous Coward, 11 Apr 2014 @ 5:17pm
    
    Re: Re:
    So do guns, dumbass.
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    - Anonymous Coward, 11 Apr 2014 @ 7:02pm
      
      Re: Re: Re:
      So name a person who got fileshared to death.
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    - G Thompson (profile), 12 Apr 2014 @ 12:54am
      
      Re: Re: Re:
      So do potatoes.
      
      your point?
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      - Anonymous Coward, 12 Apr 2014 @ 3:07am
        
        Re: Re: Re: Re:
        I lost my "How To Kill With a Potato" manual. Sharing is caring, so seed that thing on the Pirate Bay for me, mkay?
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        Anonymous Coward, 13 Apr 2014 @ 12:14am
        
        Re: Re: Re: Re: Re:
        Sure, find someone who has it.
        
        Or you could just use a search engine. Oh, right, you can't; your dick is allergic to search engines.
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    - British Citizen, 14 Apr 2014 @ 8:02am
      
      Re: Re: Re:
      Name one. The point of a gun is to threaten, to wound, or to kill. In the hands of legally-sanctioned users guns were used to kill an innocent Brazillian electrician due to an identity foulup. http://en.wikipedia.org/wiki/Death_of_Jean_Charles_de_Menezes
      
      Tool, my arse.
      
      Guns are offensive weapons and I don't want them to be shared out like candy among our population. Keep your insanity on your side of the pond, please, Americans.
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      - JBDragon, 14 Apr 2014 @ 5:00pm
        
        Re: Re: Re: Re:
        If someone is coming at you with a Knife or a Gun or whatever else, a gun in your hand is now a Defensive Weapon!!! You're a woman, abut to get raped by a big old man, how are YOU going to stop it? A GUN!!! Again, Defense. There are all kinds of reasons for owning a gun. Someone breaking into your home. You want to protect yourself and your family. Again a gun can save the day!
        
        You know what happens when you have no guns. You make everyone a real easy target!!! I could kill you with a Nail Gun. Ops, it's a TOOL and a GUN, better BAN it. I can kill you with a KNIFE, better BAN it. Hell make a bomb out of a Pressure cooker, better BAN those. Hell, I can find a hundreds things in a Home Depot to kill people if I wanted. Sure don't need a gun to do that!
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Anonymous Coward, 11 Apr 2014 @ 3:56pm

Spain just needs to get the message that a black mark from the legacy recording industry is actually a badge of honor in the eyes of more sensible and reasonable persons.
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- That One Guy (profile), 11 Apr 2014 @ 7:32pm
  
  Re:
  Spain and every other country.
  
  The day when other countries realize that being on one of the US's corporate 'naughty lists' is actually something to be proud of will be an awesome day indeed, should such a thing ever happen.
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