Spanish Judge Rules Personal File Sharing Legal

[Lemur]

This is an interesting one -- a Spanish judge has ruled that a man cannot be prosecuted for personal file sharing. I wonder if this will have any effect on the RIAA's and MPAA's let's-sue-our-customers strategy ...

Spoiler Alert, click show to read: 

Spanish judge says downloading is legal

File sharer gets off scot free

By Jan Libbenga
Published Friday 3rd November 2006 12:04 GMT

A judge in the northern city of Santander in Spain dismissed a case against an anonymous 48-year-old man who shared digital music on the net.

Judge Paz Aldecoa of No. 3 Penal Court ruled that under Spanish law a person who downloads music for personal use can not be punished or branded a criminal. He called it "a practised behaviour where the aim is not to gain wealth but to obtain private copies".

The ruling sent shockwaves through the music industry as the decision allows Spain's 16 million internet users to swap music without being punished. Spanish recording industry federation Promusicae says it will appeal against the decision.

The state prosecutor's office and two music distribution associations had sought a two year sentence against the man, who downloaded songs and then allegedly offered them on a CD through email and chat rooms. However, there was no direct proof he made money from selling the CDs.

Justice Minister Juan Fernando Lopéz Aguilar says Spain is drafting a new law to abolish the existing right to private copies of material.

Due to different regulatory regimes in Europe, the proceedings against file sharers differ greatly in each country. However, most European judges tend to take a harder stance on file sharing. Twenty two people in Finland were fined €427,000 last week for illegally sharing movies, music, games and software, while courts in Sweden also fined two men who had downloaded movies and music for personal use.

Over 100 students at Växjö University, southern Sweden, have been banned from using the institution's network in the past two years because they downloaded copyrighted material without permission in their apartments on the university campus.

[Ronin]

I knew the spanish had to be of some use sooner or later....

[Crazed Rabbit]

Well, stealing from CD stores has the same goal...

CR

[CrossLOPER]

So does buying them.

[Lemur]

CR, just out of curiosity, do you support the RIAA's lawsuits? If so, could you explain your position a little?

[yesdachi]

I think WalMart has a new shoplifting rule that if you steal something worth less than $25 and get caught they will not press charges. One could intemperate that to mean that someone could steal almost any CD and not get in trouble even if caught, maybe the record companies should follow suit, given that WalMart sells more CD’s than any individual label.

[Crazed Rabbit]

So does buying them.

Sigh, except - DUH - stealing is illegal.

I don't think the lawsuits are the best approach, but I think downloading copyrighted material without paying for it is stealing.

CR

[Ronin]

Sigh, except - DUH - stealing is illegal.

I don't think the lawsuits are the best approach, but I think downloading copyrighted material without paying for it is stealing.

CR

I don´t think ridiculously over-pricing the goods they sell is correct either...

as long as they keep it up so shall I.

[Scurvy]

they have every right to overprice them, they have to make a profit, and as a business organisation their job is to make the largest profit possible, if consumers were not willing to buy cd's at these prices, then the company would have to lower them (and to an extent this is happening)

that is no way to justify stealing - just because your being ripped off doesnt justify taking it for free

[Lemur]

I don't know, I'm more conflicted on this issue than I should be. On the one hand, stealing is wrong. Artists who don't get paid won't make more art, and that would be a Bad Thing.

On the other hand, the music industry is probably more corrupt than the boxing industry, and that's saying something. I don't know a single musician who has anything nice to say about the labels or the RIAA. The labels have a decades-long history of ripping off the artists, so anything that starts to take the labels out of the equation can't be wholly bad.

But wholesale theft can't really be the answer. Like I said, I'm conflicted. I know the lawsuits are wrong. And I know that the downloading is wrong. And I love music and musicians. So I would love to see what Tony Blair would call a "third way."

There's plenty of wrong to go around, I guess.

[lars573]

Actually Lemur any music artist will tell you that, as a general rule, the record label makes money from selling CD's and that they personally make money from touring. So a fair number of artists don't give a flying frack how you get their music, only that you come to their live shows. As what pays their bills is you buying a ticket/paying the cover and buying over priced t-shirts. Why do you think dinosaur classic rock acts tour like hell but don't make new albums?

[Don Corleone]

You know, Lemur has a valid point. As somebody who makes their living from intellectual property, I have pretty strong feelings on this issue. That being said, you hate to see an industry as blazenly crooked and corrupt as the recording industry be the ones to take advantage of case law. Then again, what is 'ripping artists off'? In semiconductors, for example, the engineers that design a chip and it's supporting hardware rarely see a small fraction of the financial rewards a successful product may generate for the company as a whole. Are we being ripped off? I'd say no, as I entered the agreement fully aware of the potential downside. If the recording industry misrepresents their interests to their artists, then the artist should get themself a good contract attorney and seek justice there. Encouraging their fans to 'screw the label' is not the right answer, lawlessness never is.

[Beirut]

Actually Lemur any music artist will tell you that, as a general rule, the record label makes money from selling CD's and that they personally make money from touring. So a fair number of artists don't give a flying frack how you get their music, only that you come to their live shows. As what pays their bills is you buying a ticket/paying the cover and buying over priced t-shirts. Why do you think dinosaur classic rock acts tour like hell but don't make new albums?

Ain't that the truth.

Lars, isn't it legal do DL music here in Canadaland?

[KukriKhan]

Ain't that the truth.

Lars, isn't it legal do DL music here in Canadaland?

As of '04 (I think) Canuckians can download (but not upload) mp3's because ya'll tax the sale of mp3 players.

That's if this old brain remembers correctly.

[lars573]

You know, Lemur has a valid point. As somebody who makes their living from intellectual property, I have pretty strong feelings on this issue. That being said, you hate to see an industry as blazenly crooked and corrupt as the recording industry be the ones to take advantage of case law. Then again, what is 'ripping artists off'? In semiconductors, for example, the engineers that design a chip and it's supporting hardware rarely see a small fraction of the financial rewards a successful product may generate for the company as a whole. Are we being ripped off? I'd say no, as I entered the agreement fully aware of the potential downside. If the recording industry misrepresents their interests to their artists, then the artist should get themself a good contract attorney and seek justice there. Encouraging their fans to 'screw the label' is not the right answer, lawlessness never is.

But any engineering company pays you a salary (a damn good one too) plus benefits. And while a moderately succeful band will get a lumb sum around as much as your salary (for example $60,000 USD) all at once as an advance to make an album from their label. They themselfs have to use that to pay themslfs to live. Any new gear they need, and depending on your contract studio time and a producer. The label will also want it on a certain schedule, for marketing puroses. They'll also want it to have at least 5 single worthy cuts. All under 5 mintues preferably with a catchy tune.

Lars, isn't it legal do DL music here in Canadaland?

It's grey. The copyright laws chafe at us using Kazaa/Ares/Limewire to get music for free. But our privacy rights/laws chafe at the record industry prying into our online habits. I've only heard of a few lawsuits being filed against Canadians DL'ers by our music industry. IIRC it's because no judge would let the industry go after our ISP's for information on it's customers surfing habits.

[Ironside]

they have every right to overprice them, they have to make a profit, and as a business organisation their job is to make the largest profit possible, if consumers were not willing to buy cd's at these prices, then the company would have to lower them (and to an extent this is happening)

that is no way to justify stealing - just because your being ripped off doesnt justify taking it for free

Isn't it in the consumers interest to make sure that they get the best deal possible? So if the buisness is ripping you off and you stumbles on a virtual gold mine... It's not like people will have severe moral problems ripping off companies that overcharges them.

And it's not stealing, it's breaching of copywright laws. Why is it important to seperate them? Because had it been stealing (with that counting that someone is losing something in the process), it wouldn't been a successful phenomena.

IMO, the sueings is more or less the death-spasms (for those who doesn't adapt) for the giants in the music industry who are unwilling to lose thier gold-mine in a changing industry. As file-sharing is here to stay, for better or worse.

[Lemur]

Maybe we all need to just sit down and re-read our Garrett the Copyright Ferret comic books. Might help us make sense of this mess.

[Mooks]

This thread reminds me a of a song that I heard a while ago.

Heres the video. - https://youtube.com/watch?v=cwy393phsLU

[Ronin]

Actually Lemur any music artist will tell you that, as a general rule, the record label makes money from selling CD's and that they personally make money from touring. So a fair number of artists don't give a flying frack how you get their music, only that you come to their live shows. As what pays their bills is you buying a ticket/paying the cover and buying over priced t-shirts. Why do you think dinosaur classic rock acts tour like hell but don't make new albums?

exactly....if you want to support the artists one goes to the shows and pays for the tickets..

record sales just stuff the pockets of the record companies.

what I find most amusing about this is it seems that copying music has just been invented....ever heard of audio cassetes?....back in the day we all went to our friends houses and made copies of their albuns to tape....but once it becomes digital data flowing over the internet the indistry goes ape-****.....go figure..

[Lemur]

Here's a good analysis of what's so darn creepy about these lawsuits. Key quote:

Now it seems to matter less whether you downloaded 10 or 10,000 songs, you are both equally at risk of being sued by the recording industry. What it has become is something equivalent to the Salem Witch Hunts of the late 17th Century - more of a public spectacle than an actual criminal investigation.

One has to wonder, if just like those witch hunts, Robert Santangelo's friend squealed on him in order to protect himself.

So what are we left with? Instead of the RIAA being respected for doing what essentially is their legal right, they are now enemies in the eyes of many consumers. Some argue that the industry's attempts are more of an anti-competitive measure rather than an action on the merits of copyright law.

This same type of hubris was shown in the contentious negotiations with Apple and iTunes. Instead of being happy with the price levels at 99 cents, which study after study has shown to be an ideal price to both generate revenue for the record labels and continue to reduce piracy, greed once again took over.

Steve Jobs said it best at the time: "We're trying to compete with piracy, we're trying to pull people away from piracy and say, 'You can buy these songs legally for a fair price.' But if the price goes up a lot, they'll go back to piracy. Then everybody loses."

It seems that the RIAA is less interested in enforcing the law, and more interested in controlling every part of the nascent online music industry - from where you get it, to how much you pay for it, and what you can get. And in the end, they aren't just hurting consumers, but also themselves.

[Lemur]

If the recording industry misrepresents their interests to their artists, then the artist should get themself a good contract attorney and seek justice there.

If the messed-up legal and financial dynamics of the music business are of interest to anyone here, I encourage you to read Steve Albini's famous "The Problem With Music" essay. Written ten years ago, and still perfectly valid today. Albini does a great job of breaking down the math and demonstrating exactly how the labels sign a band for, say, a quarter million dollars, and still wind up keeping the artist in the hole.

If you're serious about these issues, you owe it to yourself and to musicians everywhere to understand how this works.

[Don Corleone]

Okay, first and foremost, some of the math in that balance sheet doesn't add up. Why is the band paying of the studio costs out of their advance? Shouldn't the studio be paying the production costs? There's plenty more questions I have, like why the band never saw any royalties from the album sales, just the initial advance, their tour money and their t-shirt money.

Second, even if the recording industry is constantly screwing artists, and i'm not arguing that they're not, does that justify IP theft? Isn't that like arguing that it's okay to torch the house of a pedophile? I mean, after all, he's child molesting scum... sure it's against the law, but he deserved it.

[Lemur]

Even if the recording industry is constantly screwing artists, and i'm not arguing that they're not, does that justify IP theft?

As I said in an earlier post, I am conflicted, and this is why. Corruption does not justify theft. But something really has to be done about the corruption, especially when theft is so widespread.

Band's "advances" are considered to be just that, advances on expenses. And there are some very well-paid people in record companies who do all sorts of funny math to make sure they never have to pay royalties. Like I said, it may be the only industry that can be easily called more corrupt than the boxing industry.

[edit]

Hey, if you're interested in a more current take on the industry, TheReg has a good interview with the guy who originally managed Pink Floyd (and now Billy Bragg). He's got a more up-to-date perspective on just how messed up the industry is ...

[Blodrast]

Lars, isn't it legal do DL music here in Canadaland?

afaik, nobody has been sued (in the US or anywhere else) for downloading. I am not sure whether downloading is illegal or not, technically speaking; however, it's uploading that people have been sued for.
I don't recall having seen cases where people were sued for downloading.

[lars573]

Okay, first and foremost, some of the math in that balance sheet doesn't add up. Why is the band paying of the studio costs out of their advance? Shouldn't the studio be paying the production costs? There's plenty more questions I have, like why the band never saw any royalties from the album sales, just the initial advance, their tour money and their t-shirt money.

The advance is a fancy way of saying a loan to make an album. Or a speculative investment in how the band could preform in the mass market. Essentially the band is now a quarter million in dept to the record label. Also that chart is a bit wierd. He's showing the total for different things (video tour etc) then the break down underneath.

I ran the numbers via MS excell and they are in the hole but good.
They start by being given $250000. Right off the bat they lost 47,500 in managers cut and legal fees. So they now have $202500 left. For the album they budgeted $150000, and spent 140500. For a video they budgeted $30000 and spent 37,000. They also spent $15000 on new instruments, amps, a light rack, rehearsing, and a party. So of their advance they have $10000 left. Then they go on a 5 week tour. Spent $50875 to do it and make$35000 ($50000 minus manager and agent cuts totalling $15000), so they are on the hook for the $15875. So of their advance they have -$5875 left. Now they got to keep $16000 from their both the merchandising and publishing advances so they are now at $26125. Now I worked out the guys numbers and he's right they band is in the hole $14000 on the royalties. But they had $26125 left from their advances. So they are left with $12125. But had they not jumped labels they would have had $50000 more.

Second, even if the recording industry is constantly screwing artists, and i'm not arguing that they're not, does that justify IP theft? Isn't that like arguing that it's okay to torch the house of a pedophile? I mean, after all, he's child molesting scum... sure it's against the law, but he deserved it.

It's more like (to me) robbing the labels as a form of rebellion against their corruption and mistreatment. Mistreatment of both the artists and us the consumers. I pay $20 (minimum) for a CD.

[Kanamori]

Copyright violation is not theft. It has the potential of limiting the profit of some company that is given the sole right of copying that thing, but using copying illegaly. Stealing is going into a store or warehouse and taking something that they've already made.

[Scurvy]

Copyright violation is not theft. It has the potential of limiting the profit of some company that is given the sole right of copying that thing, but using copying illegaly. Stealing is going into a store or warehouse and taking something that they've already made.

there's very little difference, both are taking something away from the company and gaining it for yourself

[Soulforged]

The ruling sent shockwaves through the music industry as the decision allows Spain's 16 million internet users to swap music without being punished. Spanish recording industry federation Promusicae says it will appeal against the decision.

Well it's not like they had been punished before. The cases that end with a penalty are usually notorious ones, but the real ammount of filesharing happens in relatively minimal ammounts between particular users as day by day exchange without much notice.

The truth is, that intellectual property (wich is of course a misleading name considering that most of the property's right characteristic don't apply) is an old institution decaying on a world that evolves towards common information more and more. Is a conservative institution, and I think it's just and right with some limitations, but it might no work anymore on the internet era. However renewing the way people use to transmit their work might also be a way to go through this an conserve intelectual property: like the world of music is doing now, adding more and more artists to the trade of files through internet.

Judge Paz Aldecoa of No. 3 Penal Court ruled that under Spanish law a person who downloads music for personal use can not be punished or branded a criminal. He called it "a practised behaviour where the aim is not to gain wealth but to obtain private copies".

The fact that he calls it a "practised behaviour" seems to show that he believes it's an accepted custom. We should also notice that the judge seems to be talking in abstract, not about this case, but about music downloading in general.

However Spain is not ruled by common law or case law. Court rulings don't have that much importance.

Justice Minister Juan Fernando Lopéz Aguilar says Spain is drafting a new law to abolish the existing right to private copies of material.

This is a little more relevant, and a little extreme I believe. The only material affected by this "practised behaviour" is the one susceptible of being downloaded through the internet. This law must have a different end, a broader one.

[Xiahou]

As I said in an earlier post, I am conflicted, and this is why. Corruption does not justify theft. But something really has to be done about the corruption, especially when theft is so widespread.

Well, I think we can agree that suing your customers is a pretty dumb way of handling the problem. Records companies as they're currently constituted are dinosaurs (leeches?) that serve no real purpose. I also tend to think that their losses due to illegal downloads are overstated. I haven't done the research, mind you, but I'd guess the majority of people who download music illegally wouldn't have bought the CDs anyhow.

I think their real problem is that the record companies are providing goods and services that people don't want anymore and instead of adapting they'd rather blame the scary 'interweb' and try to sue people into buying their crap.

[Conqueror]

there's very little difference, both are taking something away from the company and gaining it for yourself

Think about it like this: Around the corner there's a shop that sells apples. I go in that shop and steal an apple. Now I have one apple, while the shop has lost one apple from their inventory without being paid for it. That is theft.

Now there's a record company that sells music. My friend buys a CD (1 song) from them. He then rips the CD on his computer and makes an mp3 of the song. Then he emails the song to me. Now I have a copy (mp3) of the song and my friend has a copy (actually two, an mp3 and a CD) of the song, while the record company lost exactly one copy (the CD) and was paid for it. But they can make more CDs. That is copyright violation.

So there's the difference: the record company does not end up losing CDs that didn't get paid for (whereas the shop did end up with less apples without compensation) - instead they end up with a situation where supposedly less people will be interested in buying those CDs.

EDIT: found a better way to phrase this...