A Spanish court has dismissed a case against the popular peer-to-peer movie download site Cinetube citing legal precedents in concluding that redirecting online traffic is not illegal per se, even if it is to copyrighted content, according to the verdict disclosed yesterday.
Cinetube.es indexes thousands of copyrighted videos and was mentioned in last monght's Megaupload indictment. It is also one of the top targets of the entertainment industry once Spain's new antipiracy legislation, dubbed the Sinde Law, is enforced starting in March.
"The links in this web have been found in different video webs online (veoh.com , megavideo.com... ) and we don't know if these" are legal, says the home page of Cinetube. Referring to the links it redirects traffic to, it says: "all content has been exclusively found in public Internet sites, which makes this content of free distribution. No law prohibits distribution of free content and thus this page doesn't violate any law."
The ruling gives legal ammunition to the movement fighting antipiracy laws and will be the most recent precedent when the piracy battle heads to the Supreme Court. Ultimately the question is whether judges or officials should decide when copyright is being infringed.
In the verdict, the judges say the accusation could not prove any crime was being committed by Cinetube and directly dropped the charges, citing a previous ruling from 2011 that also released P2P site Sharemula.com from copyright infringement. Sharemula shut down shortly after winning the case.
The judges in the Cinetube case argue that like in the Sharemula precedent, Spanish law specifically limits the liability of P2P sites, which "will not be responsible for the information to which their users are redirected to," as long as they 1. have not been "effectively" notified about their illegal nature and 2. if they have, act accordingly to delete the link.
The "effective" notification is at the heart of the legal dispute because courts first have to conclude that the original content that is being indexed in P2P sites is being distributed illegally, which in effect has rendered the process useless.
Put simply, before being able to officially notify a P2P site that a song is protected and should thus be removed, the accusers first have to legally prove that the song was indeed distributed illegally, a lengthy and costly process that can easily be circumvented by renaming a file, for example, thus shielding P2P sites.
And that is where the Sinde Law comes in. It creates administrative commissions that will replace courts in deciding when copyright legislation is being infringed to streamline the "effective" notification process.
But civil liberty and freedom of speech advocates argue that their rights would be infringed if a government-named body is allowed to rule on copyright matters without judicial oversight.
The ultimate decision will inevitably land in the Supreme Court. Last week the tribunal announced it would consider an appeal lodged by the Association of Web Users that argues that the recently approved codes of Sinde Law is unconstitutional. The appeal also requested an injunction of the codes. Proceedings could start as early as this month.