Linking to P2P content declared legal in Spain

[Note: I know the title is not legally accurate, I hope my fellow lawyers will cut me some slack for reporting purposes ]

(Via El Mundo) A judge in Barcelona has just delivered an astounding sentence with regards to sites that link to P2P content. The case was brought by SGAE (Sociedad General de Autores y Editores), the main Spanish collecting society, against Mr Jesus Guerra-Calderón, an individual who administers a site called elrincondejesus.com. SGAE claimed that Mr Guerra has been reproducing and communicating to the public works owned by their associates. The respondent argued that his website does not store any content, is not for profit, and that it simply provides links that can only be accessed using eMule, a P2P application, and therefore is not liable for direct or secondary copyright infringement. The judge agreed with the respondent, and dismissed the claim. Was the judge correct?

Elrincondejesus.com is a bit of an oddity, it is an very old-fashioned website filled with flashing icons, scrolling text and clashing colours. It does have a bit of a quaint 90’s feel to it. It is accurate to say that the site itself does not host any content. However, it is filled with links and images that clearly indicate that if you click on them, you might be taken to a page where the content can be found. The links however, are not direct links to the content, they are  eDonkey links; instead of having the form http:// they are ed2k://. This means that a normal browser cannot open them, and you need to download a P2P application that can open the file, such as eMule. This is a terribly inefficient way of running a website, it makes the service painfully slow, and it also relies entirely on Mr Guerra’s own input, as none of the content is generated dynamically.

One can tell a lot about a person by looking at their website, and elrincondejesus.com is like an open page. The site seems to be entirely a labour of love, there is no obvious manner in which Mr Guerra is making any money from the service he provides, and the technologies used are like a snapshot of the file sharing scene circa 2004. In other words, I cannot see why anyone would use this service, when it would be easier to find content through faster dynamic torrent portals such as Isohunt and the PirateBay. Perhaps the value lies in the fact that Mr Guerra is pointing directly to Spanish language content, so it might offer a niche service to people who have not kept up with newer services, and also who want links to Spanish content in an accessible manner.

Having said that, is the service infringing copyright? The case is centred on one simple legal question. Does providing a link to content constitute making the work available to the public? As mentioned, the judge did not think so, his reasoning claims that linking is not the same as distributing, disseminating and making the work publicly available. Mr Guerra is just creating an index of links, which is not in itself an infringing practice. In his view, linking is an integral part of the Internet. He says:

“The defendant’s conduct is to create an index that supports and guides users to access networks using P2P file sharing system, menus, posters or covers for movies or musical works. But there is no provision in the protection system covered by Intellectual Property Law, and adapted to Community Law, that prohibits sites which encourage, permit or guide users to search for works which will then be traded through P2P networks. Broadly speaking, the linking system is the very basis of the Internet, and a multitude of pages and search engines (like Google) can technically do what precisely what is currently under dispute, namely, to link to so-called P2P networks.”

This is a remarkable paragraph. Because the same result can be achieved through other means, the judge has ruled that this specific website is not engaged in copyright infringement. Moreover, the judge took into consideration that elrincondejesus.com is not a commercial endeavour. As if the above was not enough, the judge then went on to make a legal assessment of P2P networks in general. Magistrate Raúl García-Orejudo makes an interesting argument about the legality of P2P systems:

“P2P networks are mere conduits in the transmission of data between individual users of the Internet, and as such they do not infringe any right protected by Intellectual Property Law. Some P2P networks act as storage, which contain files that are not protected. There are also works which are no longer protected because the term of protection has run out; and there are works whose protection is not allocated to SGAE. Therefore, it has become necessary to clearly delimit which works are protected, and what conducts can infringe Intellectual Property Law, which was not done in this occasion.”

The judge also bemoans the fact that it is very difficult to clearly identify P2P users and the files they are sharing, even if they are infringing. Judge García-Orejudo admits that some conducts in P2P networks can be infringing, but seems to imply that current legislation does not fit quite well with the technologies. He says:

“Undoubtedly, previously undistributed works can be made available to the public through P2P networks, even potentially, as they might not be downloaded by other users. This behaviour can often be directed to a plurality of people. However, again, the legal type does not fit exactly and in every circumstance the usual behaviour of the users in such networks, given that, on one hand, in most cases users have the intent of downloading a file not knowing if part of the file they just downloaded is being shared at the same time by one user or a plurality of users from their hard drive. It is perfectly possible that the file exchange is taking place with only one person, or with a limited number of people.”

Here the judge is skating on thin ice. I understand that Civil Law judges are less capable of interpreting the letter of the law than common law judges, but even if one takes a very narrow reading of the law, I cannot help but feel that Mr García-Orejudo may be wrong in his interpretation. He seems to imply that knowledge of the exchange is a requirement for infringement, which is the completely wrong reading of the EU Copyright Directive. This suspicion is confirmed when I read the next part of the reasoning:

“Concluding, one must not forget that this is a mere exchange of files between individuals, without commercial gain, directly or indirectly (as it is difficult to establish a necessary causal relationship between downloading and not purchasing a work) through a medium such as the Internet, which is distinct from other obsolete technologies ( such as exchange or copy of tapes), in the fact that it has become massive and global, as is the distribution by the same medium of publicity, access and authorised communication of works by their authors or managers with the corresponding monetary rewards and cultural diffusion”.

Now, that is a long sentence. I am hoping that my translation managed to convey the wrongness of the argument. The judge seems to be saying that just because the Internet allows for the legal dissemination of information, then P2P is not so bad. This is so wrong-headed that I do not know where to begin.

This is an important and interesting ruling. I tend to agree with the linking part of the reasoning, but I completely disagree with the argument presented by the judge with regards to P2P networks. The judge uses some paper-thin arguments here to imply that P2P networks are not illegal, that they are here to stay anyway so what is the problem, and that almost nothing taking place in those networks can be enforced. I would be surprised if SGAE does not appeal the ruling.

Having said that, it seems clear that judges around the world are increasingly having to grapple with complex technical issues. The Australian judge in Roadshow v iiNet got the technology right. I’m afraid that Mr García-Orejudo did not even try.

Update: Good analyses in Spanish from Miquel Peguera and Iurismatica. We seem to agree that the ruling should have ended with the discussion about links, and that talking about private copying is a red herring.