Spain will finally implement its controversial antipiracy act starting in March now that the new conservative government rushed the enactment of the pending codes. Its success though is sure to be tested in courts and on the streets.
Jose Ignacio Wert, the new Spanish minister in charge of copyright issues, said Tuesday that the antipiracy war would mirror the drug war, that is, “persecuting the traffickers, not the consumers.”
But opponents have promised to flood courts with appeals over what they say is an unconstitutional attack on freedom of expression, a legal argument so far supported by judges. They are also promoting a boycott of artists who have supported the anti-piracy law and distributing legal instructions to avoid prosecution.
To be sure, Spain, with one of the world’s worst illegal download track records, is gearing for a protracted battle that will likely influence the anti-piracy war globally. Popular sentiment, but especially legal effectiveness, will be tested.
Illegal downloading, mostly in the form of peer to peer is mainstream in Spain and constitutes around 45% of internet users according to market-research firm Nielsen, compared to 23% average in the top five EU markets.
But the previous Socialist administration unexpectedly announced in December that it would not enact the codes it had written in response to the popular uproar.
But last week, in its first cabinet meeting, the new government of the Popular Party led by Prime Minister Mariano Rajoy enacted the inherited rulebook that will give government-named bodies unprecedented powers to shut down websites within 72 hours without judicial oversight.
The law “simply puts us in the same field where countries respect and enforce intellectual property,” Wert said Tuesday
Over a dozen court rulings in Spain and European Union tribunals have created legal precedents that question the constitutionality of shutting down web pages, unless they host copyrighted content, which is rare.
The legal risks were illustrated late last month with the complete absolution after a three years case of Pablo Soto, the Spanish Robin-Hood of the P2P community. He created much of the software that redirects traffic to access content, some of it copyrighted.
In 2008 Spain’s music industry — Warner, Universal, EMI, BMG, and Sony — sued him for 13 million euros (nearly $17 million) for profiting illegally from copyrighted material. But courts ruled Soto was not responsible for users’ illegal downloads saying in effect that P2P communities also share legal content and thus targeting them would infringe on the rights of those who don’t downloaded copyrighted material.
Almost at the same time, Soto received a 1.6 million euro ($2.1 million) grant from the government last month to develop his new P2P software.
The new government will surely face an uphill battle to fight piracy. Targeting illegal downloaders directly, as France and the UK are trying, has been ruled out because cases would be lengthy and numerous, rendering any attempt ultimately fruitless.
Instead, Spain decided to expedite the process by limiting the judicial role.
Artists and the internet industry have mobilized – but not in favor of illegal piracy; instead they are advocating against handing the government a big brother role than could be used to censor.
Carlos Sanchez Almeida, a lawyer who has been fighting anti-piracy legislation for years, wrote in Twitter: “We have two months to write a code, binary and judicial, to exploit the bugs of the Sinde Law.”
A government-named commission selected without any specific criteria will determine if a webpage is used for illegal downloads. After a warning, another commission, also hand-picked by the government, will have the power to shut down web sites, and courts will not be allowed to rule on piracy matters.
With the new anti-piracy law now less than two months from being enforced, opponents who in the past led dozens of protests, hacking attacks, boycotts, and calls for referendum are once again organizing to render the law useless.
Several groupings and citizens have promised to challenge the constitutionality of the new law in Spain’s highest court on the grounds of freedom of speech. One group posted instructions on how to bypass the law.
Another group called for a boycott of artists supporting the Sinde Law, listing almost 80 people online, including some of Spain’s most popular musicians like Alejandro Sanz, Miguel Bose, La Oreja de Van Gogh, Paco de Lucia, as well as movie stars like Javier Bardem and directors Pedro Almodovar and Alejandro Amenabar.
Whatever the outcome, applicability of the new law will be a test case of the global antipiracy war.