Spanish Court Dismisses Complaint From Nintendo Against Counterfiet DS Cartridges, Since They Add Functionality

from the getting-it-right dept

It seems that Spain is a country that is pretty consistently figuring out that we shouldn't just throw out all other rights the second "piracy" is shouted by the entertainment industry. We've noted recently that the country hasn't just rejected three strikes and declared broadband a basic right, but has also ruled, repeatedly, that personal file sharing is legal. And now, it even has judges who realize that "anti-circumvention" laws should have limits as well.

As you probably know, one of the key things that the entertainment industry has pushed for throughout the world is "anti-circumvention" clauses in copyright law. In the US we have this in the DMCA and it's a total mess. The law basically says that any attempt to circumvent (or to make or sell a tool to circumvent) DRM on a digital work is a violation of the copyright law -- even if making a copy of the content in question wouldn't violate copyright law.

Spanish copyright law includes an anti-circumvention clause, but as Leo Martins alerts us, a judge in Salamanca, Spain has taken a much more nuanced view of it in a case pitting Nintendo against Grupo Movilquick, who produced alternative cartridges for Nintendo DS devices. The judge's ruling (translated from the original) appears to find that the alternative cartridges do, in fact, circumvent Nintendo's DRM and can be used for "pirating" games, but also extend the utility of the devices for perfectly legal purposes. For that reason, the judge dismissed the lawsuit (translation from the original) noting that it doesn't make sense that the law would be intended to say that only Nintendo can expand the functionality of its devices, and the fact that Nintendo doesn't offer similar functionality shouldn't preclude others from doing so. There are areas where Nintendo can still bring a lawsuit, such as for patent and trademark issues, but the judge notes those should be dealt with in a civil court.

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Spain Says Broadband Is A Basic Right

from the that's-another-one dept

Slashdot alerts us to the news that Spain will be following Finland's lead in declaring broadband as a basic legal right. I'm still not convinced that declaring it as a full legal right makes sense, but it does show how important broadband is becoming to society. It will be interesting to see how this growing trend matches up with the efforts from the entertainment industry to have countries pass laws to kick people off the internet for file sharing. It would certainly appear that the two positions are not compatible.

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Three Strikes Rejected In Spain

from the another-one-down dept

It seems like the recording industry's grand plan to get ISPs to be their copyright police isn't getting very far. Consumer and legal backlash around the world seems to have stopped it cold. The latest is in Spain, where the entire concept of a three strikes regime has been taken off the table. Instead, the plan in Spain is to go after file sharing sites and services -- as we've seen them do a lot lately. The only problem? Spanish courts have found both that personal, non-commercial file sharing is legal and that sites that are merely pointing to content are not liable for whether or not the content is infringing.

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Another Court Ruling In Spain Finds Personal File Sharing To Be Legal

from the no-profit-motive dept

While the entertainment industry has been working over time to try to stop file sharing in Spain, court ruling after court ruling has found that personal file sharing is perfectly reasonable and legal -- and that sites that merely link to content rather than host it (i.e., search engines and trackers) aren't breaking copyright law either. In the latest such case, a judge found that a guy who downloaded and shared over 3,000 movies wasn't violating copyright law, because it was all for personal use with no intent to profit.

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Record Labels Continue Their Attack On Spanish File Sharing Programmers

from the just-can't-stop dept

We've seen a series of efforts by the big four major record labels to shut down file search engines and software in Spain, despite the fact that such systems have been ruled legal in the country in the past. In one case, they were able to get one guy to cop a guilty plea and get jail time, because he couldn't afford to fight the charges. The latest such story is actually getting covered by the Associated Press, as the big four record labels are going after yet another programmer who created some file sharing apps, trying to charge him with "unfair competition" and demanding $17.5 million. Part of his defense is that Spain has a music levy on blank media, and thus it should be legal for anyone to download (other cases in Spain have ruled that personal downloading isn't a violation) -- and, thus, not a violation to create tools for such downloads. It'll come as not much of a surprise, that the record labels disagree. They'd prefer to get their piracy tax and shut down any attempts to share music at the same time.

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Recording Industry Tries To Shut Down Search Engine In Spain Without Allowing It To Defend Itself

from the fairness-not-needed dept

Last month, we wrote about how the recording industry was able to pressure the operator of a BitTorrent search engine into pleading guilty despite not actually having broken the law. The site in question didn't host any infringing files, but merely linked to a variety of files. Previous lawsuits had shown that, in Spain, merely linking is not infringement. But with the cost of a huge court case, the operator found it cheaper to just settle. Emboldened by this, it appears the industry is going after other sites as well, despite the earlier court rulings finding such sites legal. TorrentFreak notes that in one case, against the search engine Agujero.com, the local recording industry reps demanded an immediate injunction against the site, without even allowing the site's operators to give its side. Luckily, the judge did not fall for this, and after a hearing in which both sides presented their position, is allowing the site to continue operating while the trial continues, noting that shutting down the site: "might cause irreparable prejudice to the defendant." It's good to see another reasonable ruling, though troubling that the recording industry tried to push for an immediate injunction.

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Spanish File Sharing Admin Sent To Jail... Despite Not Breaking The Law

from the not-so-good dept

I missed this story last week, but it's an important one to cover. The entertainment industry has been bragging about its various "wins," but when you look closely at them, many of them are questionable. For example, there were some news stories recently about how the operator of a file sharing site called InfoPSP in Spain was sentenced to 6 months in jail. However, TorrentFreak looked more closely at the case, and realized that the guy in question didn't actually commit a crime at all and was simply pressured into a plea bargain. That's because Spanish courts have made clear that it's not illegal to just link to infringing content. However, after recognizing the costs to fight this in court, he simply agreed to the plea bargain deal:

So a deal was done. Kuve would admit to being a criminal and accept the court's decision with the assurance that he wouldn't be chased through the civil courts by the plaintiffs. Kuve and his lawyer decided that it would make sense, financially at least.

"I am a student and therefore do not have the financial resources needed to hire a defense expert that could ensure results in the trial. Besides, continuing with the trial meant that the civil courts could convict me and I would be forced to pay financial compensation which I couldn't cope with," said Kuve.

"I would have loved to defend my interests to the end and it is for this that I wish all the people in my situation who can afford to stay and fight for something that affects us all, the best of luck."

It's quite troubling that the entertainment industry was able to send someone to jail, despite him not committing a crime, and can then use that "example" to try to show people how they, too, can go to jail. For an industry that keeps trying to take the moral high ground, you have to wonder how it can claim it's moral to send someone to jail despite not having broken the law?

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Wedding Crashers In Spain Actually The Copyright Cops

from the did-you-pay-for-that-performance-of-YMCA? dept

I tend to believe that the various song performance "collections" organizations around the world have a history of going too far in trying to collect on every possible use of a song. However, it seems they can always go a step further. Apparently, in Spain, the collections group there, the Spanish General Society of Authors and Editors (SGAE), has been not just crashing weddings, but secretly videotaping them to record evidence of music being played. The venue, of course, is supposed to pay music performance royalties, and SGAE believes that it applies to such private gatherings as well -- though, it still seems a bit extreme to crash a wedding and film it. However, at least the courts in Spain realize that this seems a bit ridiculous and have fined the society for "breaching the intimacy" of the married couple with one such video. In the end, the society was fined more than the restaurant for not having the requisite license.

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Spain Recognizes That Deep Linking To Infringing Content Is Not Infringing

from the a-good-ruling dept

While other countries are still going back and forth on whether or not just linking to infringing content should be seen as infringing as well, an appeals court in Spain has upheld a lower court ruling that merely linking to infringing content is not infringing itself. This makes a lot of sense, as putting up links to content controlled by others should never be seen as a crime, especially when the linking party might not have any idea whether or not the linked content is infringing, and when that content could potentially change. Either way, this is a good ruling for various torrent tracker sites, since all they are doing is linking to content, rather than hosting any themselves.

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