Spanish Appeals Court: Linking Is Not Infringement

from the and-again dept

For a few years now, we've been pointing out that various Spanish courts have reasonably ruled that merely linking to infringing works hosted elsewhere is not infringement. It seems that Spanish courts have to keep repeating this, and now there's yet another ruling, this time from an appeals court, once again pointing out that linking is not infringement. It's nice to see the courts keep saying this, though it only seems to give fodder to the entertainment industry to whine about how Spain's copyright laws need to be fixed. Let's try this on for size instead: it actually seems to show that Spain knows how to properly apply liability and to not blame an intermediary service provider for actions of its users.


Reader Comments (rss)

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  1.  
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    nelsoncruz (profile), Aug 8th, 2011 @ 10:05pm

    But... but... but piracy!

    Piracy happens and it's theft! It's so hard to stop it. It will be easier if we can blame intermediaries, linkers, advertisers, and who ever else we can think of. Maybe the mothers for breastfeeding the damn thieves when they where babies! They should have known their kids would infringe our holy copyrights, and they failed to educate them properly.

    And let "properly applying liability", due process, human rights and common sense be DAMNED. /sarcasm

     

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  2.  
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    nelsoncruz (profile), Aug 8th, 2011 @ 10:06pm

    Re: But... but... but piracy!

    were babies*

     

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  3.  
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    Old Man in the Sea, Aug 8th, 2011 @ 10:53pm

    How can any number be infringing?

    Since all binary numbers are numbers, how does one make a number infringing. Correckt (spelling in honour of 'merry cans) me if I am wrong, but I didn't think you could copyright any number anywhere in the world.

    One of my side research activities is to represent any number in various formats (as per AOCP). This would mean that any binary number could be stored in different formats and hence how would one know what it was or what it represented? So that the same number could be a movie, a document or just a very long number depending on the person using it.

    The thing that strikes me as being strange is that if you reverse the order of bits in the binary number you now have a number that is completely different. So how is this now infringing.

    At all times, everyone has the use of every number imaginable, so how can someone say that they own a number which does not have physical existence and that no-one else is allowed to use that number.

    Some people seem to have some weird and wacky ideas, though mind you there are still people who think that the world is flat or that macro-evolution is a proven fact.

    Live Long and Prosper.

     

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  4.  
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    fb39ca4, Aug 8th, 2011 @ 11:17pm

    Copyrights are pointless in the digital age

    IKR, old man. This wasn't a problem back in the analog days, when one couldn't define a length of audio or video with just a number. But back to the present, I don't think anyone could reasonably restrict the use of certain numbers. Like you said, reversing the bit order makes it completely different, and things like compression and encryption algorithms will also do the same thing. Even XORing all the bits will make it completely different! And then there's the intended use. One could distribute a movie and say it was a list of seeds for a random number generator. Copyright is baseless in the digital age.

     

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  5.  
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    Casey Bouch (profile), Aug 8th, 2011 @ 11:29pm

    Re: How can any number be infringing?

    I don't see that getting very far. Bits are simply the construction materials behind the product. You can't copyright wood, nails or the like but you can copyright the products they produce.

     

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  6.  
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    Jeffrey Nonken (profile), Aug 9th, 2011 @ 12:07am

    Re: How can any number be infringing?

    The problem people seem to have is that they think we 'merry cans speak and write English. Including most of us.

    For a while I got into the habit of spelling such words as "colour" and "honour" the English way; it still comes naturally to me and sometimes I have to remember not to. while I was doing that -- and extending it to similar words -- one day it occurred to me that unfortunately I didn't actually know the rules. So I was probably applying it where it didn't fit.

    Since I'm not currently interested in investing scads of my time and effort learning a whole second set of spelling rules, I decided to just revert back to what I know. Better I spell using the rules I know than screw up the rules I don't know.

    Thing is, we don't speak English here. We speak American. Once you realize that you'll stop complaining about our spelling. It's simply a different language with a lot of similarities.

    :)

     

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  7.  
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    Jeffrey Nonken (profile), Aug 9th, 2011 @ 12:08am

    Re: Re: How can any number be infringing?

    Huh. Didn't realize I could copyright a table.

     

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    The eejit (profile), Aug 9th, 2011 @ 12:13am

    Re: Re: How can any number be infringing?

    So it's more like Latin Portugese and Mediterranean Portugese. Gotcha. :)

     

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    herbert, Aug 9th, 2011 @ 2:00am

    what a pity the entertainment industries wont accept this fact in USA. instead, they just keep getting the various law depts to change things to suit how they want it to be, not how it is.

     

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  10.  
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    Old Man of The Sea, Aug 9th, 2011 @ 2:52am

    Re: Re: How can any number be infringing?

    Yawanna tri n spick and spell strine. nabadi unnerstans anythin we sai or rate.

    so avagoonite.

    We face the problem here that teachers teach children to spell consistently not correctly. So my comments were not a criticism but an attempt at humour - something that my wife and children consider somewhat off the planet. My daughter did marry a man like her father and my son-in-law has a sense of humour that brings as many groans as mine does.

    I know my youngest still asks me how to spell words even when he has the dictionary sitting beside him.

    Live Long and Prosper.

     

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  11.  
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    Old Man in The Sea, Aug 9th, 2011 @ 3:13am

    Re: Re: How can any number be infringing?

    Problem is that each number can be constructed in a myriad of ways (using decimal, octal, hexadecimal, binary or using sets and set theory or any other imaginable form). The number represented is still just a number and irrespective of what form the representation takes, it is still the same number - a non-physical logical entity.

    The question to be asked then is if you can copyright one form of representation does that mean all representations of that number are automatically copyrighted by the person or company that has copyrighted the original representation? Even though they may not have considered alternate representations of that number.

    Secondly, what is the situation, where a single number is used to represent a document, and image, a movie, an encryption key, etc? Does the person or company who obtained the original copyright on that number then hold the copyright on all interpretations of that number irrespective of who has come up with the number itself?

    When a number can be copyrighted, from my point of view, it then opens a can of worms for which there is no simple, clear, precise and logical answer. Though when one starts looking at lawyers, laws, law-makers and those who carry out the law, once immediately sees that logic is not a strong point of any of these. At least with man-made law systems.

    Live Long and Prosper.

     

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  12.  
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    Andrew D. Todd, Aug 9th, 2011 @ 4:45am

    Anywhere In The World.

    The best practice for outfits like Rojadirecta, which expect to be blocked at some point, is to strongly encourage users to download and save a HTML file, containing a wide range of contact information. Not just the dot-com URL, but the dot-org URL, the dot-info URL, the dot-es URL, the dot-me URL, the dot-cc URL, and so on and so forth. Add some snailmail addresses for good measure, some telephone numbers, and some IP addresses. Doing this gives them massive redundancy all the way through. The user looks at his file, and tries out various URL's, in various jurisdictions and countries, which are pointed to various servers in various countries.

    Rojadirecta is making a lot of noise about suing the United States Government, not in the expectation of winning, but merely so that everyone will know where they have gone. The American government is trying to claim a lie-- that it has actually shut Rojadirecta down, rather than merely blocking Rojadirecta-dot-com. Exposing that lie means that the previous users-- and a lot of other people-- intelligently go looking for Rojadirecta in other top-level-domains.

    With more than a hundred different top-level-domains to choose from, it is statistically inevitable that the pirates would be able to find someone, somewhere, with an antagonistic attitude towards copyright-holders. One top-level-domain is all that is needed. I believe that the American State Department noted, in some of the Wiki-Leaks documents, that Spanish public opinion does not support copyright, that the attitude "on the street" resembles that of a third-world country, rather than that of the United States. It is hardly surprising that Spanish jurists tend to put this attitude into legal language. There will always be some country or other, which has little or no ability to export its own culture, for which royalty payments represent a drain on foreign exchange.

     

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  13.  
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    Anonymous Coward, Aug 9th, 2011 @ 6:52am

    What is the point of this post? We all already know that Spain has the most lax enforcement of it's copyright laws, and a judicial branch that interprets what gets to them in the most narrow way possible. That is why Rojo was operating there, and not anywhere else.

    Remember, Mike, it's the World Wide Web, not the World Wide Spain. Thankfully the rest of us are not subject to their weak kneed legal system.

     

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  14.  
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    Ninja (profile), Aug 9th, 2011 @ 7:31am

    Re:

    Thankfully the rest of us is not subject to the US delusional and nazi legal system.

    I'm amazed on how you are the minority and think so highly of yourself ;)

     

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  15.  
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    Anonymous Coward, Aug 9th, 2011 @ 7:44am

    Spanish courts have reasonably ruled that merely linking to infringing works hosted elsewhere is not infringement

    I read the court documents that Rojadirecta filed in the forfeiture action, and the Spanish court did rule that Rojadirecta facilitates infringement. This can't be good for Rojadirecta since the government's theory is that the website (and by extension, the domain names) facilitates infringement. Even if linking is not itself infringing, that doesn't save your pirate friends.

     

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  16.  
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    Ninja (profile), Aug 9th, 2011 @ 9:20am

    Re:

    It saves. The ruling has been delivered. Rojadirecta is legal in Spain.

    Too bad for you and your MAFIAA goons ;)

     

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  17.  
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    Anonymous Coward, Aug 9th, 2011 @ 9:40am

    Re: Re:

    Being legal in Spain is nice and all, but the court in New York dealing with the domain names is going to apply U.S. law.

     

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  18.  
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    btr1701 (profile), Aug 9th, 2011 @ 11:53am

    Re:

    > Thankfully the rest of us are not subject
    > to their weak kneed legal system.

    Why not? You guys seem to think the Spanish are subject to our legal system. Why wouldn't the reverse be true?

     

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  19.  
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    nelsoncruz (profile), Aug 9th, 2011 @ 3:55pm

    Re: Anywhere In The World.

    There is a Firefox Extension that redirects seized domains. https://addons.mozilla.org/en-US/firefox/addon/mafiaafire-redirector/

    There is also proposals for an alternative, de-centralized .p2p domain system.

     

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  20.  
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    nelsoncruz (profile), Aug 9th, 2011 @ 4:12pm

    Re: Re: Re: How can any number be infringing?

    I know a guy that frequently makes similar arguments about numbers. But I think judges would tend to rule that the problem is not the number itself, but how it is obtained. Numbers that (with a certain algorithm) output a copyrighted work are not randomly generated. Those numbers are created by applying a certain algorithm to the copyrighted work; ie it's derived from it. I think they would say that as long as one can "extract" a copyrighted work from a number, then it is infringing.

    Same as with vinyl records. It's not like there is a copyright on the indentations made on the plastic, but as long as music can be "read" back from them, them it is a reproduction/fixation of the work. In practice there isn't much difference between making a recording with a needle and plastic, or the MP3 algorithm and silicon (or magnetized disks or whatever can store 1s and 0s).

     

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  21.  
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    nelsoncruz (profile), Aug 9th, 2011 @ 4:12pm

    Re: Re: Re: How can any number be infringing?

    I know a guy that frequently makes similar arguments about numbers. But I think judges would tend to rule that the problem is not the number itself, but how it is obtained. Numbers that (with a certain algorithm) output a copyrighted work are not randomly generated. Those numbers are created by applying a certain algorithm to the copyrighted work; ie it's derived from it. I think they would say that as long as one can "extract" a copyrighted work from a number, then it is infringing.

    Same as with vinyl records. It's not like there is a copyright on the indentations made on the plastic, but as long as music can be "read" back from them, them it is a reproduction/fixation of the work. In practice there isn't much difference between making a recording with a needle and plastic, or the MP3 algorithm and silicon (or magnetized disks or whatever can store 1s and 0s).

     

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  22.  
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    nelsoncruz (profile), Aug 9th, 2011 @ 4:35pm

    Re: Re: Re: How can any number be infringing?

    Correction: Brazilian or South-american Portuguese versus European Portuguese.

    Portugal (my country) has no Mediterranean coast, so it's not technically Mediterranean. Also Latin does not equal south-american. Italian, French, Spanish and Portuguese are all latin languages and cultures. Latin was the (now dead) language of the Roman Empire which ruled over them all.

    Central and south-america is called latin-america because the people speak spanish and portuguese, not the other way around. :)

     

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  23.  
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    Jeffrey Nonken (profile), Aug 12th, 2011 @ 5:25pm

    Re: Re: Re: How can any number be infringing?

    Actually I took it as dry humour [sic] and tried to reply in kind. Note the quip at the end about us really speaking different languages after all.

    I'm old enough that our schools pretty much taught us to spell correctly. (I mean, American correctly.) I do remember the teacher telling us about a new, alternate method of teaching to spell phonetically, and showing us a book. At the time I thought it was pretty stupid, but heck, I was all of maybe 8.

    These days... I'm not quite as arrogantly sure of myself on that opinion, but I'm still not convinced.

    What I do know is that if I see a post that doesn't at least approximate English spelling (including substituting single letters or numbers for words), I will pass it by. I used to try to decipher such messages, and after having done so always concluded that it wasn't worth the effort I'd expended. Eventually I decided to stop bothering. I have yet to regret that decision.

     

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