MADRID - Pablo Soto is a hero, a Robin-Hood of sorts, for the global peer-to-peer (P2P) community, a title he rejects even after his recent epic court victory against the American music and movie industries that have targeted him for years.
His luck might be about to change though now that a new conservative government is in power. Jose Ignacio Wert, the new Spanish minister in charge of copyright issues, said Monday his priority would be fighting the country's culture of illegal downloads that have made it the one of the worst offenders, certainly in Europe.
"Nobody will respect the culture of a country that leads the illegal download ranking," said Wert after naming his team. "Let me be completely clear in that none of the objectives we laid out are compatible with legal loopholes. We will act decisively against those who unduly profit from the intellectual work of others."
To be sure, the new Spanish government came out swinging, but it's unclear what kind of ammunition it will seek or be granted, especially to overcome years of legal challenges and precedents that experts suggest makes the antipiracy war self defeating on the legal front.
Soto, 32, will no doubt be a litmus test for the new government. He has become a legend of sorts in the legal battle against online piracy, especially in Spain. He embodies a complex dilemma, not only for Spain, but for rich nations that are losing the war as copyright infringement continues to increase exponentially faster than authorities can react.
In 2008, Spain's music industry, Warner Universal, EMI, BMG, and Sony sued Soto for 13 million euros for profiting illegally from copyrighted material. He was a 29-year old entrepreneur with muscular dystrophy and largely considered the scapegoat of a scare tactic meant to send a strong message to illegal downloaders.
Soto's company wasn't sharing copyrighted material though. Rather, he created P2P software -including Blubster, Piolet, and Manolito- that transformed the entertainment industry's fight against piracy by making it a lot easier for people to share copyrighted material.
Instead of stashing content in servers that US and European courts could target, P2P connects million of downloaders to millions of uploaders who share content, some of it copyrighted. The technology indexes information on how to access content, not much different than Google or Yahoo.
After more than three years, courts last week finally ruled in Soto's favor, basically agreeing with the defense that he was not responsible if users abused his software for illegal purposes, no more than Microsoft could be held accountable if someone uses its programs for illegal activity.
Perhaps more significantly, it ruled that the plaintiffs -the entertainment industry- had to pay for all of Soto's legal defense, in effect making him the victim and perpetuating his unwanted legend.
Soto was flooded by congratulatory messages, and even asked by a reader to lead the P2P movement during one of several live chats in Spain's biggest publications after the court ruling. "I don't think we need a visible leader, and in any case there are a lot better leaders than me," Soto replied. That said, "I have felt tremendous support from the beginning by thousands and thousands of people. I have never felt alone."
The Socialist government replaced last week passed the controversial Sinde Law earlier this year with the support of the Popular Party that is now in power. But it never approved the specific rules to implement the law, leaving it up to the new government the "hot potato," as Minister Wert described it.
Not unlike other countries, Spain's dilemma is in its laws. Spanish authorities haven't been able to effectively combat piracy, at least fast enough to keep up with the rapidly changing Internet, and courts more often than not prioritize constitutional rights of free speech and privacy laws.
So far, Spanish tribunals, as well as those in other EU countries, have generally blocked attempts to shut down P2P websites that redirect traffic to access copyrighted content because file sharing itself is not illegal. In other words, courts have ruled that P2P indexing web pages are legal, even if the system itself is used for illegal purposes, in some cases by a majority of users.
Authorities have tried to legally filter out illegal downloaders and uploaders, but courts have limited their reach and rendered the process lengthy and futile. The French "three strike" system, known as the HADOPI law, targets repeating downloaders, but critiques say it's self-defeating because it only scares away inexperienced users who don't profit from the content anyway.
The savvy ones, including those who profit most from pirated copyrighted movies and music, can hide their online activity and circumvent blocks. A recent Swiss government report commissioned to recommend a strategy to combat piracy questioned the French system's ability to dent piracy in the long term.
In the Spanish case, the proposed code that was never approved would have created a government-named commission to decide whether a page can be shut down and whether someone can be prosecuted, a model similar to the US bill Stop Online Piracy Act, or SOPA. The new government has not hinted on what it will do with the proposed code, but it has promised swift action.
Soto's case also illustrates the fine line that governments must seek amid an economic crisis to make sure that antipiracy legislation doesn't undermine entrepreneurship.
Soto, for example, last week received a 1.6 million euro government grant to develop his new file sharing system dubbed Foofind, which he promises will be the Google of the file sharing world. In its grant decision, the government described his project as "having enormous potential for the future of our country." He will use the money to hire engineers, in a country with almost 50 percent unemployment among people under 35.
Before being sued, he had 8 employees and a thriving business. For three years he has bordered on bankruptcy. Now he is redeemed and itchy to challenge the entertainment industry with much more powerful software and a court ruling in his favor.
Even if appealed, Soto's case shows just how difficult it will be for any government to shut down P2P, in Spain or elsewhere. And if Soto is right, this is a lost cause for the entertainment industry that is defending an outdated business model, not copyrighted content.
"In my opinion, the music business isn't at risk, only the business of a specific type of middlemen," Soto wrote referring to his accusers.