For many years, we highlighted how Spain was a country that actually had much more reasonable copyright laws, in that it did not try to blame third-party tool makers for the actions of their users. In the 2009/2010 time frame, there were a series
concepts like secondary liability for tool makers, on the same basic principle as the US Supreme Court decided the Betamax case years ago: it's inappropriate to blame the tool/service maker for how the tool is used. If users are using a tool to infringe, that's not the fault of the tool maker.
Of course, the entertainment industry flipped out
that Spain would have such reasonable copyright policies. They started a scorched earth campaign, insisting they would pull out of Spain
entirely. And, of course, they whined to the USTR, which started putting Spain on the "naughty list" of the Special 301 report. US diplomats in Spain then started putting tremendous pressure
on the Spanish government to pass draconian copyright laws. In fact, some of the State Department cables leaked via Wikileaks basically showed that the US entertainment industry wrote the law and handed it to the Spanish government, telling them to pass it.
Public opposition to the law was massive
, and even the head of the Spanish Film Academy quit
to protest the law, noting that the new law was anti-consumer and no way to embrace the future. And yet, in early 2012, under tremendous pressure, the Spanish government adopted the law
. And, of course, because ratcheting up copyright laws never actually stops infringement, it was barely a year before the US entertainment industry kept on complaining.
While Spain was temporarily dropped
from the Special 301 list, the legacy entertainment industry demanded
it be put back on. So, once again, a year ago, the government started pushing even more
draconian copyright laws, flat-out admitting that the only reason they were doing so was to try to stay off the USTR's Special 301 naughty list
. And, of course, late last year, new more draconian copyright laws were put in place
Given all that history, it's fascinating to see a new ruling concerning a Spanish file sharing software called Blubster. As TorrentFreak reports, after all those legal shenanigans by the legacy American entertainment industry, the Spanish courts still seem to recognize how ridiculous secondary liability is for the creators of tools. Despite a massive lawsuit from the record labels, a Madrid court of appeals has upheld a lower court decision that Blubster and related programs from MP2P Technologies are neutral
and not liable for infringement. This is a huge victory not only for the company's founder, Pablo Soto, but for the Spanish public and basic common sense around copyright law:
“[Soto's] activity is not only neutral, and perfectly legal, moreover it is protected by article 38 of our Constitution,” the Court wrote in its ruling.
In case you're wondering, Article 38
of the Spanish Constitution protects "free enterprise within the framework of a market economy." The court rejected various theories brought by the labels, including the idea that file sharing software was "looting" or that it was "unfair competition." It noted that since MP2P wasn't in the recording business, it wasn't "unfair competition" and, importantly, that it's simply ridiculous to blame the service provider for the actions of its users.
Of course, given the history we outlined in the first few paragraphs, it doesn't take much of a fortune teller to predict what's likely to happen next. Expect the pressure to ratchet up, yet again, for another change to Spanish copyright law.