Outgoing Spanish Prime Minister Fails To Enact Anti-Piracy Legislation
Outgoing Spanish Prime Minister Fails To Enact Anti-Piracy Legislation

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Outgoing Spanish Prime Minister José Luis Rodríguez Zapatero announced this week he would not enforce the Sinde Law, the country's controversial antipiracy legislation, before he leaves office. (Photo: Kevin Mazor/WireImage)

With only days left in office, Spain's outgoing leader acknowledged this week he had buckled under the weight of public pressure and would not put into force the country's unpopular antipiracy legislation, a last-minute unexpected result of a painful two-year saga.

Spain, Europe's fifth largest economy, has a horrendous track record when it comes to illegal music and movie downloads. For many here, the government turnaround was an epic battle victory in a long defensive struggle against America's powerful music and movie industry. Copyright advocates, on the other hand, trust it won't be much more than a minor setback.

The politically-charged, but also legally-controversial Sinde Law -as it's dubbed- was approved by Spain's parliament with overwhelming support in February. But the government never passed a rulebook spelling out enforcement procedures of the law, thus delaying its implementation.

"In view of the debate, it was my decision," said Prime Minister José Luis Rodríguez Zapatero said Monday during a radio interview. "There were some cabinet ministers, as well as an uproar taking place on the web, that put into question approval [of the antipiracy rules] by a caretaker government, even if the [government-elect] had been told."

"It was more comfortable to pass the hot potato on to the next government," said Miquel Peguera, a law professor in Universitat Oberta de Catalunya and one of Spain's leading experts on web legislation and piracy. Conservative Prime Minister elect Mariano Rajoy -- who will be sworn in next week -- supported the Sinde law, but didn't want to deal with the politically sensitive rulebook.

Rajoy has not clarified his intentions, although most experts expect the law to eventually be implemented. However, how long the Sinde Law will be delayed is uncertain considering the lack of political appetite amid an economic crisis, record unemployment, and still more austerity plans.

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The Spanish dilemma is legal and political, mirroring the experiences elsewhere in Europe, in the US, and in other industrialized countries. Online piracy is not condoned, but fighting it is a lot more complex than simply closing a website. Public sentiment and competing corporate interests are increasingly weighing in the process, raising the stakes.

"It's the same debate in the US," Mr. Peguera said. "How can a law be effective without threatening freedom of expression? Laws are too vague and can be used in many ways and affect many who are not involved in illegal downloading."

The Spanish Saga

Illegal downloading, mostly in the form of peer to peer, is mainstream in Spain, around 45% of internet users according to market-research firm Nielsen, compared to 23% average in the top five EU markets. "In Spain, a culture of state-tolerated apathy towards illegal file-sharing has contributed to a dramatic slump in the music market. Spain has the worst online piracy problem of any major market in Europe," according to the 2010 digital music report of IFPI, an umbrella group of the global music industry.

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Spanish courts have repeatedly ruled against the entertainment industry arguing webpages don't offer copyrighted content, but links to connect to servers located in countries immune to Western legislation. Furthermore, these indexing pages -as they are commonly known- also serve for legal exchanges, and judges have ruled freedom of expression trumps others considerations.

The Socialist government came under intense pressure from the US embassy in Spain and from the US movie and music industry to clean up its act, as revealed by Wikileaks cables. In 2009 it moved to close the legal loophole despite a public uproar. Legal challenges though delayed the process as the campaign for general elections heat up.

There were several protests, hacking attacks, boycotts, and calls for referendum, and young voters galvanized against the proposal. More visibly, the artist community split into two sides, from actors to popular music groups, some in support of the antipiracy legislation, others in the forefront of the critics.

The government was still expected to pass the rulebook, especially because it had already lost the November elections, but Zapatero decided otherwise.

Excluding Judges

Balancing freedom of speech guarantees with the expediency required to legally fight in the ultra-fast world of internet has proved harder than expected. Online piracy continues to increase unabated in the meantime.

Spain ruled out targeting downloaders directly, not just because of political sensitivities, but also because of the sheer numbers that would overload any attempt. Shutting down webpages is complex, time consuming, and ultimately fruitless because even if a court orders it, mirror images of the same page and dozens more competitors easily replace the original within seconds. It's like killing one ant during a picnic invasion.

The European Court of Justice last month also ruled Internet service providers can't be asked to filter out illegal content because it would risk infringing the rights of other users. The US Stop Online Piracy Act, or SOPA, currently making its way through Congress would target the revenue flow of sites offering access to legal content.

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Initially promising, the three strikes HADOPI system used in France scares away inexperienced users who usually have no commercial intent anyway, but not the savvy ones who can hide their online activity and circumvent blocks, including those who profit most from pirated copyrighted movies and music. While hundreds of thousands of warnings have been sent out, and early government claims that the systems is working to discourage illegal downloads, skeptics say the numbers are skewed.

A Swiss government report concluded recently that its copyright laws need no reform. Illegal downloads, the report says, don't decrease overall spending in movies or music and that in fact they could contribute to a rise in lucrative concert attendance. The report specifically criticized the French system as too costly and questioned its ability to dent piracy in the long term.

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Spain's response was to limit the role of courts and transfer oversight on digital antipiracy to the government, a model other countries, including the US, are considering. Its applicability could valuable offer lessons. Still, it would take as much as three months to shut down a webpage-assuming it was hosted in Spain- even with the Sinde Law.

That strategy though is precisely what makes it so unpopular. "People concluded the government was cheating to avoid judges," said Mr. Peguera. "The sequence of events was dangerous. Copyrights advocates lose the legal battle, so the government decides to exclude courts."

Like in other countries, the main opposition has come not from illegal downloaders, but from freedom of speech advocates and technology and internet-based companies that see unnecessary red tape that will accomplish little, but still drag on their own businesses. The law is too broad, they argue, and a bureaucrat, not a judge, will ultimately decide on what web pages are shut down or fined.

The Spanish proposal envisions the creation of an administrative commission answering to the government that will determine if a webpage is used for illegal downloads, while critics say courts, not officials, should decide that.

When and how the Sinde Law is ultimately implemented remains uncertain. While initially prompting enthusiasm among the entertainment industry, all sides agree it is still far from addressing the legal and expediency issues. Meanwhile, artists and ISP are moving to develop new business models to profit from legal downloading.

"The law won't be legally effective," Mr. Peguera said. "There's too much stick and little carrots 00 like with SOPA -- and technology improves faster than legislators write laws, plus the costs are too high. But other models like Spotify have worked better is reducing piracy. It's better to join your enemy and to monetize the business somehow. Some may not like it, but it's reality."