Las acciones legales contra el intercambio de copias en Internet - David Bravo

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