p2pnet news view Freedom | P2P:- InfoPSP.com admin AdriÃ¡n GÃ³mez Llorente, aka Kuve, was found guilty of criminal copyright infringement and sentenced to six months in jail and fines of 4,900 euros for allegedly operating an “illegal” P2P file-sharing site.
TorrentFreak writer Engimax wanted to know how, and why, this could have happened.
So he asked.
And he discovered the verdict should never have been handed down.
“The verdict coincides with the April 7 appointment of new Spanish culture minister Angeles Gonzalez-Sinde (right), who has voiced her strong opposition to P2P activity and its effect on the music and film industries,” says the Hollywood Reporter.
Could the remarkable coincidence that she’s the former president of the Cinema Academy have had anything to do with it, do you think?
Kuve, 22, was fingered by video-game owners’ association ADESE, and Spanish videographic union UVE.
“Until now, legal cases in Spain involving P2P downloads have been shelved or the accused party was acquitted, essentially on the grounds that no profit motive had been proved,” says the story, going on:
“Several court cases in Spain had laid down jurisdiction that established that no crime is committed if no monetary exchange can be proved; the fact that a work was protected by copyright law was not taken into consideration if no profit motive was apparent.”
But now, thanks to the fact InfoPSP.com, with movie and video game links, carried advertising, a judge in the region of La Rioja decided it infringed intellectual property laws, “by obtaining economic benefits via his site, says the Hollywood Reporter, continuing::
“The profit motive was not a direct cash payment, but revenue from advertising that appeared on the site.
“The La Rioja ruling says Gomez ‘put at the disposal of [Internet] users means to obtain illicit copies of works protected by authors rights… obtaining a pirated copy in their computers without the consent of the [work's] title holder’. The ruling showed that in addition to making money out of the advertising on his site, Gomez also earned income from mobile phone SMS Premium messages.”
No crime was committed
Just like InfoPSP, Sharemula found itself the subject of legal action but eventually the admins were found not guilty, since they had not carried out copyright infringement for profit. Here`s the strange part though – Sharemula DID carry advertising, just like InfoPSP.
Seeking clarification, TorrentFreak contacted the offices of David Bravo, a Spanish lawyer who specializes in intellectual property rights. According to Spanish law, the reason why the Sharemula admins were acquitted was because in order to have committed a crime, direct profit must`ve been made from the actual dissemination of the copyright works. Since the site carried only links, any dissemination was carried out by the site`s users and not the site itself. In short, no crime was committed on Sharemula and bizarrely, no crime was committed on InfoPSP either.
So it begs the question; how on earth did the admin of InfoPSP get found guilty of criminal copyright infringement and sentenced to 6 months jail and fines of 4,900 euros?
The answer lies, unsurprisingly, with the complainants in the case – the Spanish Association of Publishers and Distributors Entertainment Software (ADESE) and the Spanish Videographic Union (UVE). Of course, file-sharing site admins being protected under Spanish law is the last thing these groups need. What they actually need is someone`s severed head displayed prominently on a pike in order to deter others, and a widely-reported 6 month jail sentence is ideal for reaching this aim.
To get the truth, lawyer David Bravo conducted an interview with KUVE, the convicted InfoPSP admin, which shines an awful lot of light on this issue – and pretty shocking it is too. First off David asked Kuve if he`d ever carried any copyright material on the InfoPSP server;
Absolutely not. The web server contained only the files needed for the operation of the forum, explained Kuve. Under no circumstances did we ever host any copyrighted works.
David then asked Kuve if it was true that InfoPSP simply displayed links which were supplied by users of the site. Indeed, the website was a forum where users could share a link to a file, Kuve replied. These links were torrents, hosting servers or file upload sites like Megaupload, Gigasize, Rapidshare etc.
Kuve then went on to explain that he and his lawyer understood that all ongoing trials against similar sites (such as Sharemula) were resolved in the favor of the sites in the criminal courts. However, the threat of being chased by the complainants for damages through the civil courts was very real and the costs associated with this would have been too much for Kuve to cope with.
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.
The real news here is that a person has been found guilty of something that was not an offense under 100% of the judges who had resolved earlier identical cases, says a concerned David Bravo.
Javier de la Cueva, a lawyer working with David, told TorrentFreak something that will be of interest to lawyers representing admins like Kuve in the future. Javier and David maintain a repository relating to Spanish court decisions on hyperlinking and release these documents under a CC-By License.
Thanks to this repository, any lawyer in Spain can use the documents to defend similar cases. The documents have already enabled lawyer Franciso JosÃ© AndÃºjar to successfully defend TVMix.
Back in LaLaLand, “The film and music industry in Spain will be hoping the case sets a new precedent on file-sharing,” says the Hollywood Reporter, adding:
“It follows a high-profile Spanish case against various BitTorrent tracker sites, which were accused by Microsoft, Spanish authors’ and publishers’ collecting society SGAE, Spanish labels association Promusicae, and rights group Egeda of facilitating links to copyrighted material via P2P application eMule.
“Both a Madrid court in 2007 and the provincial Madrid high court in 2008 ordered a stay of proceedings in the case, arguing that offering links was not a criminal activity and did not violate intellectual property laws.”
It also notes a court verdict in the case against Swedish BitTorrent tracker The Pirate Bay is slated for tomorrow.
Hollywood Reporter – Spaniard jailed for operating P2P site, April 14, 2009
TorrentFreak – File-Sharing Admin Convicted For Crime He Didn`t Commit, April 15, 2009
slated for tomorrow – The Pirate Bay: one day to go, April 16, 2009
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