Spanish Judge Says Private, Non-Commercial Downloading Is Legal

from the that-ought-to-piss-off-the-RIAA dept

A few years ago, when the recording industry filed a bunch of lawsuits against those accused of file sharing in Spain, we noted that the country’s laws required “an intent to profit” for their to be copyright violations. Of course, the recording industry responded by saying that “the intent to save money” is the equivalent of “the intent to profit” but that’s a pretty slippery slope. Apparently, at least one judge in Spain isn’t buying it. Ben S writes in to let us know that a judge in Spain has dismissed the case against one man accused of file sharing (not sure what’s happened with all the others). Even more interesting is the judge’s choice of words in his decision, saying that to have ruled otherwise “would imply the criminalization of socially accepted and widely practiced behavior in which the aim is in no way to make money illicitly, but rather to obtain copies for private use.” Of course, the industry will almost definitely appeal. Also, the political situation in Spain may be moving more in favor of the recording industry. Earlier this year, we noted that Spain had passed a new bill that made ISPs liable for file sharing done on their network, and added a blank media tax to various media (though, some may then use this to further claim that downloading for private use is legit).

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Comments on “Spanish Judge Says Private, Non-Commercial Downloading Is Legal”

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Anonymous Coward says:

Do you guys not understand the slippery slope here? Something is legal if it is not done with intent to profit? Robinhood didnt profit, but he still stole from the rich.

If youre going to rationalize, at least do it right: not only is there no intent to profit, but there is no harm done to the controllers of the IP, since you wouldn’t have given them money anyway for all the stuff you downloaded. They werent entitled to money they never would have gotten so you havent deprived them of it.

Esa idea es hermosa!!! says:

Spain…I love you. Record companies bitching about “the intent to save money” is the equivalent of “the intent to profit” is bullshit. Instead of getting their 200 million dollar present in their stocking this Christmas they get 170 million dollars instead. The downloading can even make music more popular by creating higher circulation rates thereby perhaps, dare I say it…make them more money. Babababoom!!!! scarey idea huh.

Juan Lopez-Valcarcel (user link) says:

I want to translate a key thing that the judge said:

Punishing P2P sharing as a crime would go against a behaviour that is accepted socially and is widely extended.

Source in Spanish:

How long until the labels here in the US wake up to the reality that P2P is what users want and that it actually helps promote music and consume it in new ways?

By the way, note that under Spanish law P2P sharing without intent to profit is not a crime (ie. will not land you in jail or make you pay a fine).
Still, the behaviour can still be considered illegal and the rightful copyright owners might request compensation.
Confused? Most people in Spain still are…

Juan Lopez-Valcarcel (user link) says:

Re: Re: Re:

I don’t think labels will disappear, they will need to radically transform. Labels will still provide the marketing muscle for the chosen bands to rise above the long tail of bands trying to break through. The scarce resource will no longer be access to distribution but rather consumer’s attention.

Still, it is sad to see them not willing to admit the business model is broken and trying to figure out how to fix it.
I recently heard a music executive say:
If you are in a sinking boat your first reaction is not to jump to the water — you first try to plug the hole, and keep trying until the sinking is inevitable.
More on that quote at

What are your thoughts on Spiralfrog?

Common Sense says:

Think about it...

What if a new album was released and one person bought it and then file shared it? Next thing, a million people have it and the record company got $12. It is an exagerrated example, but no less true. How can the people that make the music get paid unless people pay to listen? Concerts and radio? I don’t think that will pay the bills.

Under the mentality here, Coke and Pepsi should make their ‘secret recipes’ available since it would allow consumers to ‘consume it in new ways’, right?

Anonymous Coward says:

Re: Think about it...

I think it would be terrific if there were less music. Most music these days is written by one person, played by a band that gets no mention, a singer who has little talent and a sound person who makes the singer sound good.

Let music return to those people who actually like what they are doing and are good at it. Today everyone is making music and most of it isn’t very good.

Your honor, I call American Idol as my witness.

Mike (profile) says:

Re: Think about it...

Heh. And you call yourself common sense, but lead in with that ridiculous “hypothetical”?

What if a new album was released and one person bought it and then file shared it?

What if a new album was released and only one person bought it? Period.

It’s a business risk.

How can the people that make the music get paid unless people pay to listen? Concerts and radio? I don’t think that will pay the bills.

We’ve listed out at least 50 different ways for musicians to make money — and, actually, concerts and radio can pay the bills. In fact, *MOST* musicians don’t make any money off their CDs. They never earn enough to get the advance back, and if they earn money it’s from concert revenue.

Besides, if they distribute their music freely, they have a much better chance of attracting a larger fanbase who will pay for concerts.

And it opens up lots of other business models, such as sponsorships or fan clubs or access — all of which could be very profitable if done right.

Even better, by focusing on this model, it’s more likely that *more* musicians could make a decent living. Right now, most musicians make almost no money at all.

But, in the end, you’re missing the bigger point. It’s not about comparing the situation to what it is now. It’s about recognizing that the market is shifting and musician might not be able to build a business selling $12 CDs any more — so they NEED to adjust, whether they like the old business model or not.

Anonymous Coward says:

Re: Re: Re:

And did you notice how athletes make most of their money? Thousands of people come to football games every week. That, combined with a good clothing market, pays the bills. If bands would follow the same general format, they would be making tons of money. I’ve been dying to go to an Iron MAiden concert for a while. It was because of all the p2p music too.

Bob says:

There is NO reason sports stars or Musicians should make anything nearly what they do. They should cap all sports salaries at 45,000 a year which is still more than a lot of people make. Perhaps they shouldnt get paid at all. Hell football players only work 1 day a week for 3 or 4 hours if the game goes into overtime. Why should people get payed to PLAY A GAME!!!!! Perform a real job, one that contributes to society and EARN your moeny.

Mike4 says:

Re: Bob the bumbling idiot


Considering you think that $45,000 is a lot of money, I’m assuming you’re very young or just plain uneducated and stuck working a very unfulfilling job. $45,000 is not much at all for the average person.

You are so far off, thinking that athletes have it so easy. Ever hear of practice? Football players work every day of the week, in addition to playing their 3 or 4 hour game on a Sunday or a Monday night. I’m not saying it the hardest job in the world, but it’s not sitting at a desk all day reading a newspaper.

Being an athlete is a great contribution to society, as it provides entertainment. If it didn’t, the leagues would not get the revenue they get now and in turn, the athletes would be compensated much less, meaning the owners would profit like crazy. How would that be good for society?

Most of us wish being an athlete was as easy as you make it sound.

Try to not be so dumb.

Javier Prenafeta (user link) says:

ISPs liability... ¿where?

Right about this decision, but the information about Spanish legislation is not correct, maybe an opinion.

The Judge applies an opinion of Fiscal General del Estado (¿Chief Prosecutor?) that says is not a crime but does not discard it could be a civil infringment. That is, in Spain, the unsolved question because we have no judicial decision in any way.

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