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The Spanish Ruling on File-Sharing

November 22, 2006

Justice

A Spanish judge has recently ruled that file-sharing is permissible for private, personal use, a ruling that quickly sparked industry reaction.

Judge Paz Aldecoa of the No. 3 Penal Court of Santander dismissed a case against an unnamed defendant who had been accused of downloading digital music from the internet and then allegedly offered them on a CD through email and chat rooms.

However, since there was no direct proof that he made any money from selling the CDs, the Court ruled that under Spanish law a person who downloads music for personal use can not be punished or branded a criminal and that a guilty verdict “would imply the criminalization of socially accepted and widely practiced behavior in which the aim is in no way to make money illicitly, but rather to obtain copies for private use.”

As he had no profit interests in mind, the 48-year-old man escaped the two year sentence sought by the prosecution.

This ruling quickly became the target of major criticism from Spanish music group Promusicae and the global label organization IFPI, who has challenged the importance of this decision in Spain.

The result has been seen as a precedent, one that changes the legal terrain surrounding P2P file-sharing in the country. Even though the distribution was made via CD-R, the downloading of copyrighted music material was originally obtained via P2P channels.

“The judge, wrongly in our view, defined the distribution of the music CD-Rs as ‘private copying’ on the grounds there was no profit involved,” said Adrian Strain of the IFPI in comments to Digital Music News.

Spain has historically been a hub of file-sharing, and the latest ruling will intensify that behavior. Over the past few years, piracy – at least as it was defined prior to this recent ruling – has contributed to a massive slide in CD sales, nearly 60% since 2001, according to IFPI figures.

This decision could also be seen as allowing Spain’s 16 million internet users to swap music without being punished.

Meanwhile, Justice Minister Juan Fernando Lopéz Aguilar says Spain is drafting a new law to abolish the existing right to private copies of material, arguing that artists’ rights must be protected as much as possible.

Due to different regulatory regimes in Europe, the proceedings against downloaders and file sharers differ greatly in each country. However, most European judges tend to take a harder stance on file sharing.

Twenty two people in Finland were already fined €427,000 for illegally sharing movies, music, games and software, while courts in Sweden also fined two men who had downloaded movies and music for personal use. At Växjö University, southern Sweden, over 100 students have been banned from using the institution’s network in the past two years because they downloaded copyrighted material without permission in their apartments on the university campus.

A number of other european countries have already taken action against digital music piracy but will they side with the Spanish Judge?

A matter that is open to debate and that we would like to hear from you.

What do you think of the spanish ruling?

How should a case like this be prosecuted?

Have you seen your country take legal action against illegal music downloads?

Do you think there should be an international law concerning this affair?

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