Sinde Law Piracy Battle Heads to Spanish Supreme Court, With Global Implications
The lines have long been drawn here; it was just a question of time before the epic legal battle over online piracy kicked off. Spain's Supreme Court this week agreed to test how much oversight power a government should have over the Internet when it targets illegal downloading of copyrighted content. The judiciary's decision, whichever side they come down on, will have a profound impact nationally and will resonate globally.
The court Wednesday announced it would consider an appeal lodged by an association of Internet users that argues that the recently approved code to enforce the country's antipiracy law - best known as Sinde Law - is unconstitutional.
The appeal also requested an injunction of the codes, which will be enforced starting March 1. The Supreme Court gave the government 10 days to address the request. Regardless of the injunction, any move to shut down web pages will eventually be conditioned by the court's ruling.
The Association of Web Users argues that the codes violate Spanish law that gives the exclusive right to shut down websites for copyright violation to courts. Furthermore, it says the new rulebook is "imprecise and creates significant legal uncertainty that endangers basic liberties of expression and information," echoing legal challenges to antipiracy legislation in other countries.
To be sure, the outcome will also ripple throughout the world. Spain's legal anti-piracy battle ultimately speaks to a much broader cultural and economic debate over governmental control of the Internet, over freedom of expression, and freedom of press. The Iberian country's high rates of illegal downloading make the country's copyright policies a test case for other nations.
Any decision in Spain would eventually need to be harmonized at the European level, most likely when it reaches the European Court of Justice. The debate over increased government powers also mirrors those in the US over several legislative bills making their way through Congress. A global consensus on anti-piracy policy would go a long way towards creating an effective strategy.
On one side are governments willing to use executive powers to fight online piracy that is increasingly biting away at the entertainment industry's profit, and on the other side is an army of well organized activists who worry about how unchecked government powers can threaten freedom on the web.
War of Attrition
The war in Spain has been long and grueling. For years illegal downloading has soared exponentially, and there is little debate over the need to fight piracy to defend copyright owners. But what powers the government should have to do so will be decided by the court.
For most of last decade, negotiations were ongoing involving civil liberty advocates, Internet associations, the government, and the entertainment industry. Meanwhile, online piracy only increased. Around 45% of Internet users in Spain regularly visit pages offering links to protected music and films material, compared to around 25% in the biggest European markets, according to market-research firm Nielsen.
In January 2011, Spain's parliament passed the Sinde law, which doesn't target illegal downloaders per se, but sites illegally profiting from copyrighted content. But the previous government failed to enact the codes to enforce the law after facing a massive popular backlash.
The new conservative government of the Popular Party ultimately passed the codes and set March 1 for its implementation, triggering legal appeals, calls for boycott, and even cyber-attacks against promoters of the law.
The new codes will allow a hand-picked government commission to determine if a webpage is used for illegal downloads. After a warning, web site owners would face being shut down with court supervision limited to freedom of expression, according to the law.
"We don't want this war. We are the victims," says José Manuel Tourné, director of the Coalition of Creators and Content Industries, an umbrella group of the entertainment industry in Spain. "We know the battle has begun. We tried to negotiate but there was no alternative. All we can do is to defend ourselves legally."
The Coalition has a list of more than 100 web sites that it will target with the law once the codes are enforced, including some of Spain's most popular like Series Yonkis, Cinetube, Vagos o PorDescargaDirecta.
"It will be a very long battle, but we will take it one step at a time," Tourné says. "We have been talking for seven years and the industry can't give in anymore. We have sacrificed a great deal, but we can't keep paying for piracy. It's just not possible."
The entertainment industry, though, is not facing a ragtag group of online pirates, but a well-organized opposition of lawyers, associations, academics, civil rights organizations, and a militant hacker army that is also readying for a protracted war of legal attrition.
Annonymous, the online "hacktivist" group, made good of their threat to release confidential information of public officials and creators that support the Sinde Law. The impact was mute. A boycott of artists in favor of anti-piracy legislation was also called, but it's too early to tell if it's having any effect at all.
The biggest opposition, and by far the most effective, is in the court room, and in fact a battery of appeals and suits are ready to be tabled in Spanish tribunals in an effort to delay and force a revision of the Sinde Law, says Miquel Peguera, a law professor at Universitat Oberta de Catalunya and one of Spain's leading experts on web legislation and piracy.
"The other side is well prepared. It's not just online pirates, but civil society they are facing, like in the United States," Peguera says. "The argument that government powers threaten liberties is well developed."
"The moment the government shuts a web site, the decision will be appealed. Several groups plan to file suits against the government commission for abuse of power for knowingly supplanting courts," Peguera says.
The legal battle though will also allow for alternatives to surface, both legally and practically, that could trigger consensus building among two increasingly hostile sides, Peguera and Tourné agreed.
"The Megaupload shutdown for example triggered a general panic and people deleted copyrighted material they were hosting. It's the intimidation effect," says Peguera.
"It also shows Spaniards are willing to pay for online streaming. The popular base is against the Sinde Law because they want to download for free," Peguera says. "But they are willing to pay for streaming, as we saw with Megaupload and as we see with premium services."
Legal music streaming has soared in Spain by more than 1,700% since 2010, according to the latest IFPI report, although it still only accounts for only a small share of music sales.
But there is room to make it more attractive. Legal online versions of movies, books, and music in Spain pay a much higher sales tax than their hard format, Touré says.
"Our industry has made enormous efforts to attract subscribers to legal streaming," Touré says. "But an entire generation has grown up thinking all this is free. We lost an entire generation and it's going to be very hard to get out of this. We have to keep convincing them and we have to do more."