Welcome to a new conference
of the subject of ethic, legislation and profession.
We have a very special guest:
David Bravo, lawyer expert in intellectual property
and, now, I leave you with him.
Thank you, hello everyone, thank you
for coming to the presentation.
By the way, I loved the presentation
made by the delegation of computer science students
who posted in twitter that you
do not miss the conference of someone
who has a facebook group asking
for him to be Minister of Culture.
I am at the top as you can see my friends,
my titles never end.
Yes, I am basically a lawyer
specialised in intellectual property and
for ten years more or less I have been
working in intellectual property
issues and defending those who the
content industry has called
pyrates and we will later see with the
results of the legal actions if they
really are or not and also the legislative
changes that have taken place about it.
In this conference,
we will adress the issue of the
legal attacks or legal actions
that have been exercised against the exchange
of intellectual works through internet
We will see what is the result of
this legal actions and how it has
changed the legislation after the
sentence that has had a particular
sign that one part of this strife
did not like. As in every
conflict, there are many ways to solve it.
In this issue about intellectual
property and in order to sum
it up,
I will say that in the issue
of file transfer, there are two sides
in conflict. One says
that this
can be stop and must be stop
with a legislation that ought to be
the most punitive possible in order to forbid
certain mass and routine habits
among citizens. And another
group that believes that
this apart from being bad, it is
also impossible to put into practice and
that we are speaking about trying to stop
something that, technologically, is impossible
to stop. Between this two
movements, there are lots of persons who
are in between and they take a bit of each position.
Of course there is a wide
variety of different possible positions,
and, without doubt,
it is the first one, the position that it is being impossed
in all legislations worldwide.
With a legislation that it is each day
more restrictive about intellectual
property rights and growing more and
more the penalties for certain acts
that are pretended to be illegal.
In the legislation, sanctions are growing
because it is understood that with
the ones there were against routine acts
like transfer of file on internet, it could not
be stopped. As it was not stopped,
penalties were increased again and again and
again as it might be a point where it
coul be stopped.
The legal attack started in the U.S.
back in the time of Napster; I do not
know if you can remember it. It was 1999
and Napster was in vogue, Metallica was the
first group that pointed out at the
users as being responsible of the
possible illegalities and since then, since
1999 and until now, the legal
battle has not stopped.
In the U.S. they decided to take legal actions.
following this
logic, after finishing with
Napster, they continued by going
after the individual users and
inniciated legal actions against thousands of
users that exchanged works through
the Internet and if this action
showed something, it was that this social
reality we are talking about was
much more heterogeneous than what it
was thought.
It was thoguht that this was a youthful
matter or even a temporary
situation, but when this legal actions
started, the demanded made clear that
they were a social mass that,
although the majority were
young persons who have grown up with
the new technologies, it reached to
all social backgrounds, independently
of age or social class.
It was exposed for
example by situation of Brianna Lahara,
a twelve years old girl that was
sue in the U.S. because she
downloaded music from Internet. It
was curious how they put the
top for the compensation. In the
U.S.
the plaintiff was RIAA which represents the
record industry in America
and what they did was that when
it came to light the scandal that a kid
was being sued by the RIAA, the RIAA
stood up and announced they were going
to solve it out of cort with
an agreement, so they asked how much money
did Brianna LaHara have, as she is a
twelve years old girl, so they could reach an agreement.
Of course, the parents and the girl replied that
she had nothing because she was a kid
so they asked if the girl had
any savings for the university
as you know that in the U.S. it is
usual. The parents answered affirmatively,
she had three thousand dollars they
were depositing in a bank account in
her name for her university when she
grows up. So they put three thousands dollars
as the amount they demanded for an
out of cort agreement. That way,
they sended a clear message,
they were going to ask for all
the money you had witohut any
distinction.
Related to age, another paradigmatic
case refering to age, so we
can see the heterogenic group
we are talking about, is the case of
Gertrude Walton a grandmother tha surprisingly
was sued for downloading rap music, which
is strange. It was a weird situation that was
shown in the press,
a eighty-three years old grandmother
downloading rap music, her niece
claimed that it was all
absolutely impossible, that her
grandmother had never downloaded rap music
and she laid on the table two legal
solid reasonings so that the demand
ended in nothing. First one was to say
that her grandmother never liked rap music
and the second one was that in the moment
of the incident, her grandmother was
dead.
It meant she had an alibi,
so the legal action
was stopped, although the message left
was clear. Identically, this
legal actions have spread from
the U.S. to the rest of the globe
including Spain where legal actions
have been inicaited against
absolutely all actors that
take part in the exchange
of files through Internet:
Users, link pages to this
files as we will see later and
even the software developers that
created the P2P program that allows
the exchange of files, not to
mention also those who host the
contents. As you all know the famous direct
download page of Megaupload that had legal
actions taken against them. Nonetheless
in Spain there had also been legal
actions against the big content
containers and one of them for
example is Youtube which in the end is
nothing more than intermediary that what it
does is to host content uploaded by its
own users.
Of course, in this issue of
the intellectual property as you see
there are basically two options and
between them which are
either we go to the restriction of this
habits through the legislative way
or we accept that this is a reality
impossible to stop in practice and
we look for an alternative way
of remuneration with new business
models adapted to this new
reality in those two possible
solutions among many other.
Among them we found that the
industry, previous to legal
actions and previous to any legal
reform, as it always is usually done
and in fact it is called in legal
doctrine, prelegislative stage. This
phase has a concrete name in the
legal doctrine, what it happens always,
when there is a group of power that wants
to change a legislation, what they make is
to present to the legislator a
reality that recquires of his
intervention. This is the reason for what there is
made the
famous awareness campaigns, those
awareness campaigns that appear
in the cinema, in T.V., in the
radio or even at schools. What they
make is to present to the legislator a
reality, a reality painted in a
specific way, serious
enough so their intervention it is
needed.
Well, in Spain we have passed it and
we are still in it because it is made
simultaneously or it never ends that
awareness phase
that started officially in 2005. A year
before, in 2004, in the 21th of June that
it is the international day for music.
They went to see the fromer president
Zapatero, they were a variety of musicians, that
for me, they are the, probably, less
representative of the music world, they
are the best selling artists, probably
those who less represent the music
sector. They went there and
told Zapatero that he had to do
something about the downloads issue.
from the perspective of repression,
meaning, from the perspective of this
political solution and no other.
Went there for example Alejandro Sanz and
David Bisbal, who is now sadly
present due to what he did
to Chenoa. And when Zapatero listened to
the laboral difficulties of David Bisbal and how
he does not have a stone heart, he
told them that he was going to intervene and in the year
2005 the antipiracy plan was adopted.
The antipiracy plan, what
it basically did was to
institutionalised as any possible
way the repression. In order to
explain what ought to be done with
the issue of the intellectual property,
far from other persons like Stallman
or Lessig who have a vision about
intellectual property
much more opened, the only possible
vision and the one to be translated
from all sides was that
intellectual property must be
restricted, it means, repress
this behaviors. That solution was
released in all communication
media as only possible way.
in fact, the antipiracy commission of the
Culture Ministry, when talks about
the campaigns calling for
awareness, it says that last
campaign, when talking about the last,
it said that it should be maintained, this campaign,
for a long time, so it could be
interiorised by the citizens and that
the plan of the media in the campaign had
as objective, to reach the highest number of
persons, an addecuated number of times
so that the message can penetrate. It means,
when we are talking in these
terms, when we talked in these terms,
that the message has to be repeated a
proper number of times so the message
penetrates. We are far away from
awareness campaigns and we are
under pure propaganda and we are talking
about political propaganda.
We are talking about sending a
political message about a possibility to solve
the problem from a range of different solutions
and saying that it is the only possible
solution. This campaigns are made in all
situations and like two week ago, it
was voted in the culture commission a PNL
where it was propose that these
campaigns were taken to schools,
something that has previously ocurred, because
they considered us to be
the lost generation as they call it.
This is to say to people that grew up
in a certain way, that has a
concrete way fo thinking and a
immovable way to make things and
that what it had to be done was to go to
kids in schools so that from
the beginning
they think this certain way from
the schools. In the Commission of
Culture of the
Congress, it was voted a PNL where it
talked about taking this awareness
campaigns to schools and it was
voted favorably by the groups with
the abstention
for me indefensible of Podemos that
voted 'No' in the
pass legislature, but this campaign
we can see is not only directed to
children because we have seen
each Christmas ther is a campaign of the
so called for awareness
i do not know if you remember, it was
called "Defend your culture", it had
a slogan specially
fool, the slogan was "If you are legal, you are
legal" seriously, I do not know who designed
the campaign. They can get back the money
yet but it was that and it had
a part of contest, really weird,
where what they had to do was to send
a message saying how did it affect you
the so called piracy and they,
three experts of culture from the Ministry,
looked at the messages and they three,
together, they decided which one was
the best of the month, and published and give
a present that were two tickets for the
Prado Museum, which as a git is not
a big thing, but it could be use for resae or
whatever.
That was the gift the contest had.
So the people started sending
their message about how they were affected
by piracy and as we are hearing
so many strange thing for the issue
of piracy that the poor moderator
they had in there in the
web page was unabke to distinguish
when they were being serious and
when they were joking because
for example, Antonio Guisasola,
president of Promusicae, it means, the
we could say
boss of record industry
here in Spain, says things like that
discographies are so
worried about the internet
download issue that even the
street sellers went to Promusica to protest
for internet downloads, It means that
in the history of Guisaola seems
an episode of the "Chanante Hour" is that
street sellers went to speak with
Guisaola to tell him "I cannot sell
pirated discs because they are downloaded from
Internet" complaining to Guisaola, it means
if that street seller exists, he is God
I want him as minister now then.
Clearly it cost the moderator
a lot of work to distinguish when
they were serious and when the
were joking
and then it happened that there were
many jokes and later, "Forocoches" joined
the game and said "I will try to
send this message, let's see if it
is published"
And clearly, lots did not pass
because they were too obvious and said I will
try to send this one and wrote in the forum "Let's
see, I will say what I was told in
scholl, I enter and downloaded films
I got infected by virus and I had to
change the CPU because virus
enter the computer processing unit, do not download
anything because people put bad things
inside the files and steak your
data, your photos, your "rotodos" and everything,
it's legal easily' how was going to pass
that with a virus that enter the processing unit,
well it passed.
It was published in the web page as
hundreds of similar comments but even
more, the tree experts from
the Culture Ministry thought that this
comment was the best of the month and they
give him the prize with the two tickets to
the Prado Museum
When I saw what had been
chosen as best, I said I would
find the one that wrote it and
I put the message in Google,
rapidly "Forocoches" "ha ha ha ha" everyone
laughing and I said, the have sneak them and
I posted it in my blog and I said, 'lets see'
the message that won was a joke,
and I am afraid that this three experts in
intellectual property are the ones that
are doing our laws and they did not
realised it, this is alarming. And then
they called me from "Público", from the
newspaper, and the told me
' I had some declarations about what
you have uncovered about the general
Director of Policy and Cultural
Industry explaining this situation'
So i got scared a bit, because I may
have put my foot in it or something and I said 'well
tell me what are the declarations and
I reply them'. He said that
the declarations were 'The only thing that
demonstrates that this message has won
is that the system is transparent, there is no
censorship and that we are dedicated to
control web pages' 'Ok, yes
it does demonstrate that and also demonstrates
that they have been sneaked until it has
reached the top, you are telling me that
there are three experts in the ministry of
culture that thoguht that virus
get into the processing unit and steal your
"rotodos" then we are lost'
The pont is that when I start reading
what the comission says about the
campaigns, they explain something that got
my attention and it is that communication
media insert this messages in
their advertisement and the
majority do it for free,
it means that Telecinco, Antena3, the private
T.V. channels, take this campaigns
elaborated by the Ministry of Culture and
they put them in their schedule for free and
it is normal inside the
enviroment that is created when talking
about new technologies in general, not
just Internet.
I do not know if you have seen how the
media treats regularly all
that has somethiong to do with new
technologies. It is always
with a prism or almost always something
negative, simply because internet and
new techonologies are direct
competitors to the media
like television, press or radio.
I had a time when Google News
existed,
before going away from Spain due to the
AEDE canon that we will talk later if you
wish to, so I search on Google News
concrete words, I searched Internet
or web or any other word that
was related to new
technologies in order to look what results
the media brought back and
the prism that was given to the
headlines. When I saw that, it
looked pretty normal that media
welcomed everything
that criticise their way of doing
things, that precisely take their
audience with the headlines I
found and anyone could do the
same proof with any other
searcher. There were headliines like
the followings, "Terror in the web", "Danger
in Internet", "Alcohol and drugs as well
as Internet may suposse a big threat
to the youth",
"Internet can cause neuronal
damages", "surfing the internet there is
higher risk of adultery",
"Jennifer Aniston leaved his boyfriend due
to Internet's fault",
"Americans abandon their
friends and sex for their life on Internet"
"The U.S. look out Twitter for
its posible use with terrorist objectives",
"A boy is murdered by his gameboy".
This last I had to read it
I could not leave it just with the headline
when I read it, it resulted that the
kid had a tragic accident when
he went out of the swimming pool and took
the gameboy which its battery was plugged
in and he was electrocuted.
The gameboy itself did not do
nothing, it was the water and the electricity
basically what intervened but in here
they decided that it was the gameboy the one
that had murdered him and sended that
message. the next headline
is clearer and said "Internet kills
you"
In here I did not even read it, it did not
matter.
"Pork flu propagated also through
Internet"
"Regular use of Internet generates
depression and isolation", "Xenophobia
dances on Internet"
"Hitler in Internet", "Cruelty of the
internet users"
"Google opens strongboxes", "Learned to
kill thanks to Google", "His computer
can be a zombi", "Internet puts on weight" and "My
daughter got pregnant and
its Internet fault" the one of Internet
puts on weight, I love it because it fits
inside a patron I have seen before.
There was a study, I cannot know which
country that gave for another headline, it
had to do with videogames.
The headline was "Videogames create
fat and violent kids" and not
only they put on weight, evenmore, they also
turned you violent. Of course the
alarmism is clear, there is nothing that
frightens more than a gang of angry
fat guys and when you read that
study, they justified it
with the typical, that
videogames create violent kids which
we have read that before in other places
and about the "fats" they justified it because
as they played videogames they did not play any sport
and that is why it fatten. There are other
activities like lecture and we have
not read anywhere a headline that said
that reading puts on weight, however
in here it looked great and the put it.
The best one with any doubt, that
reflects how I think the way
now clear about how it is talked about
new technologies in the media
is the famous case of the
cannibal of Rothenburg. I do not know if
you know it but it is a great case
in order to see how the
media talks about new
technologies. Barely you give them
a gap where a new technology
has participated in any part of a
story, more or less truculent. The case
of the cannibal of Rothenburg is easy
to explain, it has no mistery. A guy
wrote in a forum a sentence that said
"I search a good looking man that
wants to be eaten"
In his languague I guess it sounded better.
That is what was written, a good looking
man that wanted to be eaten, and an
engineer that was reading the forum
read it and said "Look I am
interested" and contacted the cannibal
of Rothenburg who eated him.
There is no last moment turnaround, it is
not Shyamalan dear friends. In here it ended how it
looked like. He ate him.
Then they took the cannibal
of Rothenburg to jail.
What has this to do with new
technologies? The guy ate him
analogically on the table. At
first, nothing. but it was announced in a forum
If it had been announced in "Segunda Mano" or
I don't know through door-to-door,
surely the way to get in
touch with the engineer would have
matter less than the fact that at the
end, a guy ate another one like if
it was a chocolate bun. However in here
the fact that they got in touch in a forum,
they had the issue linked to
new technologies somehow and
sooner there were headlines that
alert us about the problem of
online cannibals, I do not know
how you can be an online cannibal or
online vegan. The point is that the
headline was "Suspicion that there is a global
net of cannibals" and it said "The
police is finfing out little by little
the world of online cannibals and what
they find each time is
more and more dreadful".
All this infromation they
took it from the cannibal of
Rothenburg himself. It seemed that he was
someone reliable, he could eat whatever but
he has no reason to lie. And with
that, they took out all
that news.
Then all this campaign,
this vision of the new technologies,
this way to solve the conflict that
comes with the arrival of new
technologies and basically the fact that
anyone can have a printer at
home and do what before only
could be done by editors with expensive
machines and now in the first world
this can be made at home of
practically anyone, this
conflict that is generated because
befaure, intellectual property laws
only affected a small portion
of the population who were the
editors, the ones that could
pay for the copy machine.
It resulted that with the arrive of new
technologies and the broadening of the
number of persons that are able to copy.
It results that this laws were
restricting habits that are no
longer of five or six editors but
now we are talking about the entire
population.
We are talking about common and daily
habit in the society and the way to
solve it is basically
the two ways that existed in the time
of the cassette.
The legislator saw something and said,
lets see the copy of the cassette
tape is ilegal according to the law of
intellectual property, but the legislator
reached a conclusion and said, it
is ilegal but it is unstopable and what
is the point of forbiding somehing that not just
I cannot stop but I cannot stop
even a one percent.
It is not like the example usually
given of the guy that skips the trafic light.
Everyone has skipped the traffic light
sometime. But with this laws
we can restrict it to a pont where
we could coexist and
then it exists the possibility of
infraction but we can maintain it
at a level more or less tolerable of infractions.
However the issue about the
cassette tapes is
that the legislator realised something that
he cannot reduce it even a bit
because it happened in the privacy
of home and in the moment it
happens in the privacy of home, the
legislator asked himself what could he do if
technology allows in a clear way
something that is impossible to forbid and what
he said was: "Well lets
introduce what is called a
copyright so it could be legal and
lets invented an alternative of
remuneration so those damages that
we cannot stop, at least
decrease it as far as
possible and we can
remunerate the holders of the
intellectual property rights
and that is when the famosu canon was born.
Canon that worked without
anybody protesting when it was applied to
the cassette tape because the truth is that
with the exception of some groups like
journalists, it is used basically
for that.
Then it jumped to the CDs and it was then when
the CDs, the blank page of
twenty-first century.
It has a canon and then people
protested because they were putting a
tax to something that could
contain almost anything and it was then when
this remunaration system failed.
About the activities that exist
nowadays and with the legislation we
have, what the industry decided,
later we will speak about what the legislator decided,
and what they decided as a result of the
legal sentence I am about to comment,
it was to iniciate legal actions.
In a time there was a controversy in Spain
about if downloading music or
movies on Internet without any authorization
was a crime or not and if it was legal or not.
This are two concepts that seem
the same but they are not, crime
is what is punished in the penal code
whereas it may not be a crime but
ilegal, for example a civil
ilegality or skipping the traffic light.
This are not crimes but an ilegality.
So the debate that was in
2005 was if the penal code,
the one
that right now has been
reformed, later we will comment it,
if it considered a crime the
downloading from Internet.
The content industry argued
that downloads from internet were
clearly a crime, they based it in
the article 270 of the penal
code. This article required
a behavior to be with a determined
subjective aim, it asks two requisits.
Firstly, someone to copy without
authorization, this is called the
objective element, and secondly that this
activity of copying without authorization
also to be made for profit.
This two requisits have to
occur in the same action for it
to be of the penal type and so it becomes
a crime against intellectual
property. What happened was that
downloads on Internet, what we
maintained was that it occured the
objective element, there was a copy without
authorization but there was no subjective
element because the copy was not made
for profit as it was a
free exchange, what the industry
sutained was theat this profit aim
had to be interpreted in an expansive
form, it had to be interpreted as
any benefit, profit or advantage,
that something gives ou in a way that if you
download a disc, this gives you some kind
of benefit, an advantage that it is
not money but in a certain way
it benefits you or even the possibility of
saving the money of buying that disc
if you had decided to buy it and
this way with this
definition, lets say ambiguous, of
what is a profit aim, they said
that downloads form Internet had
profit aim.
There was as I said a big discussion that
was intended to be solved in practice with
the intervention of Antonio Guisasola
who went to the media
as president of
Promusicae saying he was going to do something
That was to denounce a spaniard so that
judges had to determined if that
was a crime or not. What they were
going to do, he said,
was to denounce someone so
the judges finally pronounce so the
debate is over.
Well, they did it, I do not know if
following this reasoning but the case is
that an ordinary man from Santander
won the lottery and he
was denounce so that a judge
dictaminated if that was a crime or not.
This ws resoluted in the sentence from the
penal court number three of
Santander, fourteenth of July, 2006 and what
was said by the signer judge about
the resolution was that the accused
was absolved. the judge said that the
objective element existed,
the man downloaded without
authorization but the subjective element did not,
he did not have a profit aim and
understanding profit aim, said the judge,
in a restrictive way and not expansive
as it was pretended. So as
it occurs one elment but not the
other, the penal type declines and the
action is not punishable. It is not an
action that fits in the penal type
of the 270 art. So, the at the time
president of Sony was asked in
"La Gaceta de los Negocios" what he thought about
this resolution and he analysed
the resolution calmed and the most
legally funded posible and he said that someone can be
judge and an idiot and he encouraged the
signer judge of the resolution to
study a bit more and after that
they appealed the sentence but they got
to a Provinc Court that again
did not study anything and confirmed the
sentence of the first court
Absolving the accused. So they said:
'Ok, we failed against
the users,
lets focus on the next actor',
the next actor were the link
pages, it meant, they tried against
users, they tried through the penal
way, they tried also through the civil
way but they couldn't
find out the name from the
IP numbers.
The law of data preservation prevents
that in a process that is not penal to
revealed this data, so through the civil
way they reached nothing also and
they said: 'Lets focus on
this link pages, this pages
that without containing the contents,
it means without having the
files
what they made was to put a link to
the file that was being spread in the
p2p nets by the users or
link to a server like Megaupload or
like Rapidshare. This began as a
big operation, also media,
in the year 2006, as you can see coetaneous to
the sentence that absolved this man
form Snatander and what happened was that
they detained fifteen administrators of
link web pages. The communication
media with this issue
got mad and they
published the new of this mere
detentions as if they were guilty
veredicts in itself. It is something that
shocked me a lot because you have
seen in the news that whenever
they talk about any question that
is related to a legal matter, the word
suspected or alledgley appear
as something normal
In fact sometimes it appears
excesively
I found a case where a
newspaper talke about a stockbreeder that
was found dead
half-buried and the new said "The
alledge deceased" and alledge it is not
a hal-buried corpse and also it said
that to the alledge deceased they were going too make
the ahtopsy. Check before if you have
any doubt but the paranoia for a possible
complaint for slander makes the
word alledge to be used more than
often. In the case of the raid
of the year 2006 against link pages
the word alledge disappeared
absolutely, I remember a
newspaper's headline that could
not be clearer and said in the
headline, it was a leading article tha furthermor
was published in other newspapers
of the same group, it said "Pirates on the net"
and said that the fifteen detainees were part
of the biggest european clandestine
organization of the peer to peer nets and it said
this was also a gigantic
cybernetic bootleg peddler and that it was needed
to unmask this perverted vision
of the net in order to avoid it to convert
in an authentic sanctuary of
cybercriminals. All this, the day
after to the detentions. It have not
passed even 24 hours.
Neither have passed 24 hours
when ACAM, the association of
composers and song writers
published in their web page a headline
saying "Demonstrated that exchange peer to peer
is a crime" and beneath appeared a
list of web pages that
had a header that said
"Web pages
from which there was delinquency" It did not say
denounced web pages or pages with denounced
administrators. But it said pages from
which was delinquency as a fact, the judge
did not even knowhe had a
proceeding yet, but for ACAM
the sentence was already clear
I guess that with the calm that
gave them the clause of exemption for any
responsability
that they had those years in ACAM
They had a little clause, a
usual disclaimer of web pages
but in here it goes further and
said 'ACAM is not responsible
for the articles and any
opinion of third persons published in this
web page nor of the articles or
self opinions. This means they were
completely armoured legally, the
case is that what ocurred with this cyber
santuarium of criminals. In the
first of the cases I had the luck
to participate in it with my
colleague Javier de la Cueva, the case
Sharemula was the first one to be
solved, in this case the
complainents that first denounced were the
producers of the documentaries of
Feliz Rodriguez de la Fuente, they made
a complaint and the police, that had
lot of sensitivity with this issues, sent
a letter to the affected by
what was done from Sharemula
and quickly the personal
prosecution was formed by the SGAE,
Microsof, Promusicae, Egeda, Columbia, Walt
Disney, Twenty Century Fox, Warner,
Lauren Film, Manga Film, Universal, Sony
Metro Goldwyn Mayer, Cristiano Ronaldo, well
they were all in there and the case is that the
first the personal prosecutors
made was to ask for precautionary
measures, unprecedented part, unprecedented part
meant without hearing the part tha was affected
by the precautionary measures they were
asking for, in concrete they ask the precautionary
measur of shutting down the web page.
The judge that saw the issue in the Instruction
Court here in Madrid said:
"Well, I will to listen the petition of precautionary
measures but
I want to do it with the other part in the
room to hear it because it is the first
case not that I found in this
court but that it is going to be judged in
Spain and so I seem
interesting to know what has to say
the other part"
So there was a hearing for precautionary
measures. And what the personal
prosecution sustained in the hearing
was that in Sharemula there
was being commited a crime because in
this case the profit aim was
evident.
If in the case against the users there
was no profit aim, in Sharemula there was
profit aim because there were advertisement
banners. This advertising gave them some
money, lots or few, it willbe seen during
the process, but there was money and due to
that economic profit so there is the
subjective element that was needed with
the users, so in this case there
was a crime, sustained the personal
prosecution.
What we said was that we did not
discuss the subjective element of
profit aim,
in here what was missed was the other
element, the ojective element, it means,
the copy of intellectual property because
who did it were the users of
the peer to peer nets not the ones
that link. The linkers do not copy
absolutely nothing, what the do
is to create a group of alphanumerical
caracters that tells where is
a content without hosting it, with no copy nor
dissemination. The one copying and disseminating
is the user and the decree that
desestimated the precautionary measures
said that effectively the web will not
be closed simply because what the page
did in there, did not fitted in the
penal type of 270 because even having
profit aim, it was not made with an
infraction, what Shamerula did not
do was to copy files just
because they did not have them and
after the decree, another was dictated
that closed the debate, it was the decree
declaring the free stay in the Sharemula case
that what made was to say that
as there was no crime, ther will be
no trial and it was stored,
this equals to an acquital
and it was a hard blow in
the waterline of that
raid of the year 2006 because what
directly made, not just going to a
trial and be judged and deel the dock
punishment but that operation the
most important in Europe, the media
said, the ones who pronounced
before 24 hours
It was not even necessary go to trial
because simply the action that
was complaint was not a crime.
We took the resolution, some
press talk about it and what
the personal prosecution did was to appeal it
evidently and in the appealing they introduced
a courious element and questionable that was
to say that in Sharemula no
crime was commited but they
were helping somehow to
commit it so they understood that
in a different degree of responsability
it might be participating, cooperating
inciting a crime, Sharemula was
cooperating in the assignment of a crime
commited by a third part that does communicate
publicly, they said. We argued
that neither because simply there
cannot be cooperation to a crime if
what is made by a thrid is not a crime.
Sharemula effectively helped
users to exchange intellectual
works but as the action of
the users was not criminal,
as we saw with the man from Santander,
there cannot be a crime because in order
to exist needed cooperation with a
crime, the cooperation must be with
a criminal action and results that
the users action was not.
For that reason there did not exist
any degree of penal responsability and
we were looking for a
resolution. It is not a sentence, is a decree
that was going to make with
domino effecto what was about to happen
after and I remember perfectly that no
journalist called from "El Mundo"
anywhere and after we had
been showing off on Internet
for about three or four months, telling
we had won those guys and
we were lawyers that had no
presentation card yet,
we got phoned from "El Mundo" and said
"You have to declared something
about the issue that the Province
Court has said that you have lost
the Sharemula case" of course I have
not received absolutely nothing about
that and asked how was that possible if we have not
been notified and they said that it just happened and
ask for any declaration and I said "I do not know,
say I have whined, I have cried or something
like that because I need to read the
resolution before", they said that I
would receive it. So I called Javier de
la Cueva who is from Madrid and
told him "Javier go to the Province
Court because they say there is
a resolution and look what has been said
because it seems to be negative"
and Javier, who is the most
calmed guy in Madrid and valium is
made out from his blood,
said "Well, I will go tomorrow"
and I said "What is that of tomorrow? We have been
showing off on Internet for over
three months and this has ended with our
career, it started with and now ends" and he said
"I am going tomorrow" so I had to wait
to the next day in Seville,
I woke up soon, I gave him time,
I called him at half past ten in the morning and
asked him "Javier, Have you gone?"
"Where?" (he answered) "To the Province Court,
have you gone?" and the man that is one of the best
lawyers I know and that calm
is without any doubt one
of his virtues says
"Yes, yes I have gone
I saw in the resolution that we won"
I replied "what what? and you do not call me, it
did not seem something important to you" he answered
"Yes we won" I told him "But the man from
"El Mundo" said that in the
resolution we lost" and he said
"Well he got right a 50%, not bad"
The thing is that effectively Sharemula
ended that way and after that there was
a flood of resolutions in the same sense.
This as expected
did not felt well in the
industry and later we will see quickly
what was their reaction, after losing
in the penal way and in the civil way
because the also tried against the
link pages, they focused on the
developer of the tool
precisely in Pablo Soto, who
is now city councilman
here in Madrid, he is a informatic
developer that what had made was
to create a tool peer to peer that
allowed the exchange of files,
of files that may have copyright
what may occur
in the most of the times and
not in other occasion. This depends on
the user, and they demanded him, he was demanded
by Promusica and the four major
record companies, the biggest record
companies all over the world and they asked him
thirteen millon sixty thousand euros as
compensation for violating
intellectual property
by developing a tool that
have been used by thirds
to violate intellectual property of the
plaintiff
this case had a great volume
of paper but in reality the question
that was made was simple
the question asked to the judge under
the nine qualifieds that accompanied the
complaint was simply 'Does the
Intellectual Property Law forbids the
informatic developers to create a
tool that allows a third
to violate intellectual property?'
A law like that
would have make Gutember not to invent the
printing press
The question is in our law, this is
disposable and the answer was not in
the Intellectual Property Law
The only forbidden thing was the
creation of a software that allows
to unprotect works with a
specific anticopy system, a
DRM or whatever, but it did not forbid
the creation of any other
technology, not even when this
technology may be used by thirds to
violate intellectual property rights.
The trial was extremely long, it ended
animously with Pablo Soto during that
time, It was a big dock punishment
with the sword of Damocles of
those 13 millions 60 thousand euros upon his
head and when the trial occured,
so you can see how does it moves this
question.
I remember perfectly it was a trial
dividied in three days of five
hours each day, for three non consecutive
days, there were two consecutive days and
in the third day there was one between the
secon daay. What happened was that
by casualty from the U.S. it was
sended the message that Spain was one
of the biggest pirates countries that existed
in the world, right in the secon day of the
Soto trial, the spanish media sum
the calculation they had in front of them
of two plus two and they got four, what
they made was to say that Spain was the
biggest pirate country in the world according to
the U.S. and today Pablo Soto is judged for
creating a peer to peer net and they told
that in the same new and the judge who
reads newspapers, reads this
question, in the trial it has its
weight because judges in the end are
humans too, with their subjetivities
etc., etc.
The point is the judge who was an old
man, I was in this case also with
Javier de la Cueva and my colleague
Jose Ignacio Aguilar from Seville and I told to
Javier "Watch how the judge
with the old he is, he is going to
retire and he is not going to dictate
any sentence and we have to
repeat the trial" and Javier, the calmest
man on earth, said "Nah, he is
not retiring and if the
trial is repeaed I will go
gladly" It is a delight, for me, if something
really happened and Javier de la Cueva
is your lawyer and sayid "Well look that
this guy retires, I saw him really
old, he is weak" and him "He
is not retiring and if he retires we
do this again and we doi it again as good,
nothing is going to happened". He retired, he did and
the law of civil indictment says the
sentence has to be done by the judge
that was in the hearing and the judge
retired so there is a new one
and we had to repeat the hearing
no part wanted to
repeat it because it was a waste of money
and a tremendous effort, what we
did was go to the court and in front of
the new judge, we signed an
act, all the lawyers, saying that
we all agreed on not to repeat the hearing
as it had been
recorden on video, as law oblies to, so
the new judge watch the hearing in the video and
illustrate himseld with the partial
verdict and dictate sentence with what
it is in the video with no need
to repeat it in fron of him, he could
watch it on video and all the
lawyers of all sides signed the
act telling that we all agreed.
The case is that the new judge dictated
sentence rejecting the demand against
Pablo Soto and saying that technology
peer to peer is not forbidden by the
law of intellectual property, that itt
only forbids a specific technology and
in this case it was obvious it was not,
there was also a debate about the
unloyal competence that was also
rejected, it was appealed.
It was appealed to the Province
Court of Madrid and surprisingly
it was the first allegation, the first
one of the new lawyer office
because the hired a new one was
to ask the nulity of the sentence because
it was dictated but not
by the judge who witness the hearing and
of course we have signed an act
where we said we agreed
with that, all lawyers and
said the contrary part surely
the demanded would told us that
we signed an act saying we agreed
with the new judge being
the one dictating the sentence and
look you took it from my mouth, I was going
to say it.
Just that, but we thought he was going
to study the case much better and then
they asked for nulity of the sentence
because the new judge did not studied
the bulky decrees enough
to give the the reason, it was a complete
win win.
We did not repeat the hearing if the
sentence was negative, we as for nulity and
if its positive, everything is wonderful.
The point is that this wen to the Province
Court of Madrid, rejected nulity
claiming that nulity cannot be an
ace up yur sleeve to use it
when it suits you and rejected
also the subsidiary request of
revoking the sentence making the
sentence of Pablo Soto to be resolutive.
This is the judge-made law panorama that
has been in Spain against the
users, against link pages,
against developers of
technologies that may eventually
be used to violate intellectual
property rights. As you can see all
the panorama is negative for the industry,
but this last just a bit, because it is then
when enters the legislative reform and the
legislative reform for me that I have been
in some of the cases that had to
be with it, it lacks putting the
name, meaning it is clear how it is cover
a specific hole for a specific case
that los a specific part.
The Law Sinde,
that provision, which is actually
a series of reforms in the Intellectual
Property Law, and the Information
Society Service Act, was simply to
change the arbitrators of the conflict,
what it did is that what before
the judges ruled in civil courts,
we will also be able to do so
through administrative channels,
open an administrative route for the industry,
to go directly to the Ministry of Culture,
and to be the Ministry of Culture to decide,
if this website,
As the links pages infringes or not
the intellectual property,
that is what the Sinde law did,
did not change the rules of the game,
but if it changed the referee,
in fact what happened when
changing the referee,
is that the Sinde commission
began to dictate judgments,
which were contrary to those pronounced
by the judges only a few months before,
and said just the opposite,
that what the judges said,
interpreting identical rules,
and besides changing the referee,
soon after, a year, or a year and a half later
changed the rules of the game,
reformed the Intellectual Property Law,
and reformed the Criminal Code,
and this reform
you will now understand perfectly,
without the need for great praise,
because we have seen how
your journey judicial,
and you are going to fit each of the reforms,
in your specific case
what they do with the Penal Code is,
they maintain article 270, which says:
public communication and profit motive,
and introduce you a new paragraph that says:
The same penalty as in the previous paragraph
will impose on those who maintain ordered
and classified listings of links to works
that are being disseminated without authorization,
when it has a direct or indirect profit,
to enter advertising
obviously in this Panorama,
this paragraph is expressly dedicated
to the pages of links.
As for the Soto case, what happened?
What happened was that
the cooperation to the infringement,
that term that was coined in 1999
United States in the with Napster,
did not exist in Spain,
and so that it existed,
included in article 138 which already existed,
adding a new paragraph stating that:
it will be responsible for the infringement,
not infringing,
but responsible for the infringement
of a third party, that in some way cooperated,
induces or promotes the infringement,
as is a field wide enough
to fill legal uncertainty
with people like Pablo Soto,
or like any of you who are software developers,
that is to say what he did,
or does because this article 138 is in force,
is that People like Pablo Soto,
who develop a technology
that can somehow be used for lawful purposes
and also to infringe intellectual property,
are inhibited from that development,
because the article 138
introduced a new paragraph,
ethereal enough to frighten To anyone,
because it speaks of terms
that are more specific to criminal law,
cooperate to induce or promote
the infringement of a third party.
With this article in hand
if Pablo Soto in his day,
had come to tell me,
I plan to develop a peer to peer tool,
I would have told him to be very careful,
because the article 138
introduced, is basically a
translated version in Spanish,
what the US courts said
when they coined the term
"cooperation to infringement"
to end Napster, which is just
the term that was not in Spain,
and which saved Pablo Soto,
but was not saved because
there was a gap in the Law,
nor because there was a gap now filled,
but because what was,
was a conscious decision of the legislator,
who is clear that software developers
are also creators of intellectual works,
and that need protection,
not the opposite, not a wall,
and what was not a gap,
there was a decision of the legislator
that said: "If we restrict
further software developers,
create cracks to unprotect
a certain work with anti copy systems,
it turns out To these creators
of intellectual works,
we are putting a lock
that will keep them from creating,
for fear that their technology
will be used for illicit purposes.
In this struggle between
creators of intellectual works,
has won by defeat, the industry
of non-functional works,
compared to that of functional works,
and that is the legislative landscape
with which we find now,
despite all the exchange
of works Intellectuals continue their course,
whether in peer-to-peer networks,
because as you know
there are peer to peer networks,
which are created with free software,
with exposed guts,
and that do not have a specific head,
but thousands of heads,
that collaboratively create their code,
and that are simply impossible to stop,
and if they could stop,
we know that you can not,
therefore a Pop Corn Time is born,
or is born any other way
of exchanging intellectual works,
which can not be stopped ,
this is known in the Ministry of Culture,
he fully knew when he was
Minister of Culture Wert,
he said that to be able to be
updated to new technologies,
to be able to stop this, so that
the law is abreast of new technologies,
that it was necessary to do
an Intellectual Property Law
every three months,
I think it fails even in that idea,
since it is said that
the Intellectual Property Law
will be changed in a specific sense,
until the law is effectively publishes
and enters into force,
passes the "vacatio legis",
have already come different ways of exchanging,
have jumped that new barrier,
that was very well with the case of Sinde.
When they took out the Sinde Law,
I was called to speak at
the San Sebastian Film Festival,
and I thought I would talk to
the filmmakers there,
precisely two things,
one that I thought the goal they were
getting was with the hand,
because the judge simply did not change
the rules of the game,
which were still legal,
what they did was break
the separation of powers, and say,
we opened an administrative route,
and we changed the referees of the conflict,
it seemed that they were looking for a short cut,
it seemed that the goal was
trying to insert with the hand,
but also did not enter the goal,
so it also does not score,
try to make a goal with the hand,
but neither They got it.
I tried to make a kind of experiment,
in the 20 minutes I was there,
with two other colleagues,
Nacho Vigalondo was at the table
and another person, in the 20, 30 minutes
I had to speak,
precisely the Sinde law,
What I did was an experiment
called Sinde table,
I put a hashtag on twitter
with the name Sinde table,
and I did not want to say
anything to not ruin the experiment,
to the tweeters who were there,
I just said with the hashtag table Sinde,
to he hour that begins my paper,
I will ask something to talk about
the inability to stop the pages link
with the law Sinde, because the Sinde law,
boasted of being able to close
a page of links in four months,
then took much more ,
but they said four months,
well, what we did was, open a page in
Google Docs to create a database,
page of links, only had a limitation,
they could start to send the links,
from the moment in that I began to speak,
and ended when I finished speaking,
to see how long it takes to make
a page of links to intellectual works,
which are elsewhere,
in the time it took to speak,
about the ineffectiveness of a Law,
after half an hour at the end
of the conference, I told the attendees,
I did an experiment that I did not tell you,
when I started to speak this hashtag,
and this is what has happened,
they created twenty link pages,
they had they open several pages in Google Docs,
because they made a database so extensive,
it did not fit and fell continuously,
so they opened several mirrors,
and created 20 pages of links,
in the time it takes a conference on effectiveness,
Or ineffectiveness of the Sinde law,
which was to close them in four months,
simply explained to the people there,
is that what you want to close
is the index of the encyclopedia,
but the encyclopedia still exists,
and there are very easy ways
to create an index in a matter of minutes.
Of course the director of the festival
was very angry, and I have not gone to
the San Sebastian Film Festival,
I have not been invited anymore,
for whatever reason.
Rebordinos, who is the director
of the San Sebastian Film Festival,
asked him the same day in "El País",
what did the experiment look like,
because the experiment had a lot of movement,
in fact it was a worldwide trending topic,
only surpassed by the hashtag of the word vagina
of but in short, was a very worthy second position,
and there was a lot of movement with that question,
the media called all parties asking what happened at
the San Sebastian Film Festival?,
and called Rebordinos was very angry and said:
this gentleman has not been called
here to mount this,
he has been called to talk about trans-media film,
I was surprised because
I do not know what trans-media cinema is,
everyone knows what I'm talking about, anyway,
I went there only instead of talking,
I tried to prove what I was saying,
and that seemed to go a little too far,
it's allowed to give your opinion but not to show it.
Then he became very angry,
and when asked two or three weeks later,
the San Sebastian film festival,
what had been the best and
worst moment of the festival?
said: The best had been talking to
Glenn Close of cooking recipes,
who can compete with that,
and what the worst,
although you can not speak
of one that is the worst,
but that I was the worst moment of
the Film Festival San Sebastian,
but it was quite funny,
and in definite accounts although this would close
the doors of the cinema,
something was demonstrated,
and put on the mat,
something that seems interesting,
what is done when a reality is impossible to stop?.
There is an American economist
who said that this download of the internet
was like the Law of Economic Gravity,
he was trying to say that
if you took a pen and released it, the pen fell,
and you can be against that happening,
And that you think it morally
very reprehensible that that happens,
and make thousands of laws that prohibit it,
and after all those campaigns
saying how bad it seems to you,
after making thousands of
laws that prohibit the fall of the pen,
someone will release a ball pen
somewhere and it will fall again,
the guy said that the download of the internet
was like the Law of Gravity,
and that there was little to do,
that what had to be done was to find an alternative,
so that the Creators, being a social benefit,
continue to create, and have an incentive to create,
and that could only be achieved,
with changes in business models,
and changes also in the remuneration systems
of creators, the guy said,
That in the days where the peer to peer networks
was the most attended,
said that the content industry,
this was said long before "Spotify",
long before "Netflix", or long before Filmin,
"Said that the content industry had
something that put them in a
very special competitive advantage,
ahead of the "peer to peer" networks,
those old "peer to peer" networks,
said: look at the content industry,
they have first the content before anyone else,
and can launch a peer to peer network
system remunerated for example with advertising,
or with subscription systems,
such as after Netflix was born,
and many think that gratuitousness is
the only reason it does that a mass of
potential clients will go from one place to another,
but it turns out not, that we can present
several systems, one that is free,
others "freemiun", other "premium",
and we can get those guys to get us have gone,
instead of chasing them with a stick to go back
to our stores,
to attract them with an alternative proposal,
to seduce them in some way,
said that peer to peer networks have some
negative issues, has the positive that is the price,
which is the fact that you can,
download it without paying for what you download,
but it has some negatives,
which a professional service like ours could remove,
have queue waiting,
we are talking about the times of "Emule"
has the possibility to infect you with viruses,
you have the possibility of fake you,
the famous "fake" as a classic example is:
you download a classic movie,
and in the end is a porn movie, or vice versa,
you can also , And that is almost worse,
that you download a porn movie, and be a classic,
anyway, the fact is that it is not what
you were looking for, or that you download
"Lies and Fat", and "Lies and Fat"
In short that some of this happens,
and said we can go here,
and then came out "Spotify",
and then came out "Netflix",
and it has been proven,
that if there is something that downloads
they are not the proper names of Sinde, Wert, Lasalle,
but rather are their own names similar to
"Netflix", "Filmim", "Spotify",
and it was also said that in France,
a system was proposed in the past,
basically following the thought,
that what is taken advantage of by all,
must be held by all,
and spoke of the optional general license,
an amount you pay is a form of tax,
which differs from the famous "Canon" to CDs,
in the fact of the word Optional,
we speak of general license as an option,
that is to say it was paid by
those who actually used it,
or would use the network for this,
and paid it not to the "Sgae"
to distribute it among its partners,
nor to the other seven entities Of management,
but paid it to the state that distributed
it among the authors,
who identified themselves with certain watermarks,
in a system similar to that proposed to
Richard Stallman and William Fisher,
both were cited in the book "Free Culture"
by Lawrence Lessig,
when we talked about this impasse,
where it seemed that we had arrived,
and which had been advanced Lessig said,
to the conflict several years in advance,
had seen as a visionary that this was not
going to reach no part,
long before we saw that the alley was dead-end,
and already proposed an exit in these terms,
and in France was not only rejected,
but what they did was to impose the Hadopi law,
which was to cut the connection
of those who connected to peer to peer networks.
In the United States,
they proposed not only to cut the connection
of those who connect to peer to peer networks,
but to destroy by remote control,
the computer from which they connect
to peer to peer networks.
US Senator Orrin Hatch who was also a composer
and had the poor head lost, and rejected it,
but although they rejected this
in the United States,
the level of punishment to try to stop
what was unstoppable rose so much,
that the fine that can fall
for downloading two songs,
is greater than the maximum fine
that can fall to a doctor,
who mistakenly amputates a good leg,
why? because
precisely because we spoke at the beginning,
because they found that neither
with the demands a Brianna LaHara,
nor with the demands of Gertrude Walton,
were able to stop this reality,
and they continued raising the level of punishment,
until reaching these bizarre limits,
and then came out "Netflix",
and then came out "Spotify",
because it seems that in some Countries
is already coming to the conclusion
that no matter how much we change the laws,
somewhere there will be someone
who will pick up the pen,
it will jump and it will fall.
This is all friends thanks.
Hecho por : MIGUEL POMBOZA GUADALUPE