SPAIN IPR: CRIMINAL CONVICTION IN INTERNET PIRACY

UNCLAS MADRID 000410 SIPDIS STATE FOR EEB/TPP/IPE AND EUR/WE STATE PASS USTR FOR JGROVES AND DWEINER STATE PASS U.S. COPYRIGHT OFFICE USDOC FOR 4212/DCALVERT USDOC ALSO FOR USPTO E.O. 12958: N/A TAGS: KIPR ETRD ECON SP SUBJECT: SPAIN IPR: CRIMINAL CONVICTION IN INTERNET PIRACY CASE REF: A. MADRID 224 ¶B. MADRID 397 ¶1. Summary: On April 9, a court in Logrono delivered Spain's first-ever criminal conviction and prison sentence to an individual for operating a for-profit website that facilitated peer-to-peer (P2P) file-sharing. Adrian Gomez Llorente was sentenced to six months in prison and fined 4,900 euros (about USD 6,450) for making available illicit copies of films and video games. The sentence was suspended because the 22-year-old defendant was a first-time offender. Nevertheless, content providers' representatives hailed the verdict as an important milestone that is expected to help sensitize the general public as well as the law enforcement community to the plague of internet piracy. End Summary. ¶2. The judge for the first district court for Logrono (La Rioja - north central Spain) found that the defendant was operating his file-sharing website for profit. In order to download files, viewers had to register on the site, where they were exposed to paid advertising, and to authorize the sending of more advertising via SMS, for which the operator collected a fee. The Penal Code identifies profit motive as a required element of IPR crime, and the 2006 Circular (ref A) issued by the Prosecutor General's Office (Fiscalia) directs prosecutors to pursue internet piracy cases in which commercial profit cannot be established as civil rather than criminal offenses. (Note: As discussed ref A, other formidable legal obstacles impede civil litigation in such cases. End Note.) Rights-holders have long complained that this posture not only effectively decriminalizes infringing P2P downloads but also makes it extremely difficult to prosecute and convict operators of file-sharing sites. Other courts have dismissed similar cases on the grounds that the generation of advertising revenue was incidental or ancillary to the activity of providing or making available infringing material and that the element of commercial profit was thus lacking. ¶3. According to Jose Manuel Tourne, Executive Director of the Federation for the Protection of Intellectual Property (FAP),which represents Spanish film and entertainment software interests, in 2006 the National Police conducted enforcement actions that led to the takedown of some 30 offending websites. Another 20 sites were closed the following year as a result of additional operations. Cases arising from the takedowns have been moving their way slowly though the respective district courts. Many courts have dismissed cases on various grounds. An unknown number remain to be decided. The most controversial judicial decision involved the "Sharemula" website, in which a Madrid court found in 2007 that facilitating P2P file-sharing via eMule is not a crime nor even an IPR infringement so long as a site does not itself contain or download an illicit file, because making links available is not an act of public communication. A Madrid appeals court upheld the ruling in September 2008. According to law enforcement and rights-holder contacts, police no longer undertake criminal investigations of such sites because the bar for successful prosecution has been set too high. ¶4. The ruling in the Logrono case is final because neither defense nor prosecution plans to appeal. The defendant's lawyer still asserts that what his client did is not a crime, but says he advised the defendant to accept the verdict to avoid a likely expensive civil suit. The decision has no precedential force. Judges in Spain are independent not only of other branches of government but of each other, unless and until the Supreme Court issues a binding decision, which it has not done in the area of internet piracy. But Tourne and other rights-holders were excited by the conviction and sentence, saying that it may at least influence judges with similar cases in other jurisdictions and that the publicity it has generated will help disabuse some internet users of the widespread public belief that unauthorized P2P activity is legal and permissible. This decision, together with recent internet piracy-related news in Spain and elsewhere in Europe - the controversy surrounding the new Culture Minister (ref B),the setback to proposed anti-piracy legislation in France, and the convictions and sentences in the Pirate Bay case in Sweden - have helped invigorate the public debate over internet piracy. CHACON