IIPA Wants Spain on Piracy Watchlist for Not Rubberstamping Takedown Requests

By Drew Wilson

In 2011, Spain passed a controversial anti-piracy law dubbed the “Sinde Law”. The law set up an administrative body that is responsible for taking complaints about websites and decide whether or not to shut them down. After massive protests against the law, it passed thanks partly due to US pressure. Fastforward to today, it seems that US rightsholders are now wanting Spain to be put on the Special 301 piracy watchlist partly because the administrative body isn’t making enough rulings against various websites.

The International Intellectual Property Association (IIPA) is making recommendations on who should be put on a Special 301 report in the US. The Special 301 report lists countries that are considered piracy havens by corporate entities such as major record labels and movie studios. Michael Geist found out that Canada was to be put on the watchlist even though it passed copyright reform laws that satisfied some of the demands coming from the US. We’ll be looking at that angle later, but for now, we turn our attention to why the IIPA wants Spain to be put on the watchlist.

The submission (PDF) lists a number of complaints levvied against Spain. Remember, in 2011, Spain, much to the outrage of its citizens, passed the Sinde Law. Here’s an excerpt from Wikipedia:

The law created a new intellectual property commission designed to review requests from copyright holders about websites that they claim infringe upon their copyright. The commission has the authority to determine whether to take action against the website or content intermediaries such as the internet service provider (ISP) or hosting provider. The commission’s ruling is evaluated by a judge, with the goal of completing the entire review process within 10 days. The law has a provision that also requires content intermediaries to respond more quickly than under previous law: websites determined to be in violation of copyright law must be taken down within 48 hours.

Knowing that such laws are in place, it might seem surprising that Spain would be requested to be be placed back on a piracy watchlist even though the country has tough anti-piracy laws that were put in place thanks partly due to pressure from US interests. It turns out, rightsholders aren’t happy that Spain isn’t devoting more time and resources to anti-piracy efforts. One of the complaints outlined by the IIPA:

Rights holders have been active in sending cease and desist letters, resulting in 18 site closures. As far back as 2009, the “Coalition of Creators and Content Industries,” representing record producers, authors, publishers, and representatives from cinema, videogames, and software industries, provided the Ministry of Industry and State Secretariat for Telecommunications and Information Society (SETSI) with the details for 200 websites offering links to illegal downloads of copyright works, of which only 41 have yet been subject to administrative procedures to date,
with very poor results: more than half were dropped, as the Ministry found no grounds for administrative infringement. Only 17 cases have been initiated to date, but so far none have been subject to sanction.

One of the things that stands out is that because some of the cases against a website were dropped, this is cause for complaint. If an administrative body feels there is not enough evidence to warrant the takedown of a website, doesn’t this reflect the quality of evidence being used rather than the integrity of the administrative body?

Of course, this isn’t the only complaint. Here’s another complaint:

Correct the Attorney General’s May 2006 Circular that effectively decriminalizes infringing downloads over peer-to-peer (P2P) networks, and that continues to prevent authorities from pursuing cases against Internet piracy and against the illegal copying of software on user computer systems.

Back in 2006, a court ruled that people who download content without any commercial gain are not guilty of copyright infringement. From the report:

Yesterdays ruling by Judge Paz Aldecoa of No. 3 Penal Court in the northern city of Santander said that there was “no talk of money or any other compensation beyond the sharing of material available among various users.”

The judge furthered by saying that “No offense meriting penal sanction has been committed.”
The ruling was a huge blow to the music industry who had sought a 2-year sentence against the man accused of violating copyright laws by downloading albums from file-sharing networks and then offering them to others via e-mail and chat rooms.

The judge argued that a guilty verdict would “would imply the criminalization of socially accepted and widely practiced behavior in which the aim is in no way to make money illicitly, but rather to obtain copies for private use.”

It appears that rightsholders are still furious over this ruling and still want it reversed six years later.

Here’s another demand:

Amend Spain’s e-commerce laws to clarify that rights holder-submitted notices of infringement are effective means of providing Internet service providers (ISPs) knowledge that infringement is occurring on their services without court orders.

It’s unclear whether or not this means that rightsholders are demanding to have the ability to shut down or block access to websites without a court order here, but it wouldn’t really be a surprise if it was.

Here’s two more demands:

Amend the Intellectual Property Law in order to clarify that linking sites are infringing and can be prosecuted.

Incentivize ISPs to cooperate in efforts to stem infringing file sharing activities.

While the former may not be anything new for those in the US thanks to the DMCA (digital Millennium Copyright Act), the latter, the latter may be cause for concern for digital rights activists because it suggests that rightsholders want to introduce protocol filtering. It could also be referring to website blocking at the ISP level.

The problem with the latter is that website blocking has a long history of not working. Back in 2007, an Australian teenager spent just 30 minutes of his free time cracking the Australian governments $84 million porn filter. This was when the government was adamant on blocking “inappropriate” material for everyone. As that debate heated up after, a professor in 2009 argued that an unfiltered internet has no place in a democracy.

In 2012, UK mobile ISPs began rolling out content filtering as well. While the idea was, as usual, to protect the children, what wound up on blocklists was quite shocking. ISPs blocked TOR, digital rights website La Quadrature Du Net, political websites, TorrentFreak, the Telegraph and ultimately ZeroPaid.

In 2008 also in the UK, was also censored which only served to heat up the debate of Cleanfeed.

Then there’s what is revealed in Google transparency report where governments around the world have been known to demand Google censor certain things. This can include criticisms against law enforcement and politicians. Censorship requests to Google from the government tend to reach into the thousands and this includes countries like China, Russian, the United States and the United Kingdom.

In 2012, Universal Music censored independent artist In-Flight Safety. The DMCA was also used to censor presidential hopeful Mitt Romney. Also in the same year, Embridge used copyright to censor a Canadian’s satirical analysis of the Northern Gateway pipeline.

The bottom line is that not only does censorship tend to not work, it is also ripe for abuse and negatively impacts free speech.

Then there’s the technical reason why censorship doesn’t work. There are services like VPN’s and TOR to name two services that can get around a DNS block at the ISP level.

The IIPA demands continue:

Establish a national authority to coordinate Internet piracy enforcement, and ensure allocation of adequate resources for investigation of Internet and computer crimes within the Ministry of Interior, the Guardia Civil, and the Cuerpo Nacional de Policía (National Police).

Ensure allocation of appropriate resources for Criminal Courts and Commercial Courts (Juzgados de lo Mercantil) that have jurisdiction over IP cases, to avoid unnecessary delays.

The problem here is that Spain has much more immediate problems to deal with. One problem Spain faces is the 55% youth unemployment rate. Spain also suffers from the fact that the country is in a deep recession thanks to a shrinking economy. Even if Spain had the resources to pander to American copyright interests, those resources would be better used in getting Spain out of a recession.

The IIPA also makes the following comment:

The few police actions taken against organized networks and companies that clearly made direct or indirect gains from Internet piracy, including through advertising income, are now being dropped as a consequence of the supposed requirement to establish commercial intent. Most of the cases never even reach the trial stage. Spain’s Courts of Appeal (Audiencias Provinciales) have held that advertising revenues for the websites that allow copyright infringement do not meet the profit criterion set by the Circular, thereby rejecting causes of action in the cases of Indicedonkey (10 March 2011), Rojadirecta (27 April 2010) and CVCDGO.com (11 May 1010). Throughout 2011 into 2012, criminal Investigation Courts also continued to dismiss criminal actions against websites linking to unauthorized copies of copyright works (see, e.g., the case of www.estrenosdivx.com, Criminal Investigation Court Ferrol, nº 3, January 24th 2011), and the thinking behind the Circular has also gained traction at the appellate level (see, e.g., the case of www.indicedonkey.com, Madrid Appeal Court March 8th 2011; and the streaming case of www.cinetube.es, Álava Appeal Court February 3rd 2012).

The Rojadirecta case is a very controversial one. Here’s an excerpt from Techdirt:

Of course, over time, the situation got even more ridiculous. As with Dajaz1 and other sites, the US Attorneys in charge of the case stalled when the site fought back. In the case of Rojadirecta, Puerto 80 decided to stop waiting and sued the government. From there, something of a comedy of errors by the government ensued, with bizarre and unsupportable claims, and (worst of all) repeated attempts to mix and match different pieces of the law to dance around the fact that there was no legal basis for the seizure and the whole thing was unconstitutional. Each time the feds would present an argument, as you picked it apart, you could see that even they didn’t seem to understand the law.

It appears that someone over there finally figured it out. We’d been waiting a while to hear from the court, and the last thing we’d heard was Rojadirecta/Puerto 80 pointing to Judge Posner’s recent ruling about how a site embedding clips from elsewhere isn’t infringing. Some copyright maximalists insisted that this had nothing to do with Rojadirecta, and that Rojadirecta would still lose… but not everyone agreed.

Today the government filed a “voluntary dismissal” notice of the case against Rojadirecta.org and Rojadirecta.com. You can see the short dismissal notice below. What’s unfortunate, of course, is that the government might now get away with this blatant censorship and disregard for basic due process, without a court ruling showing that it was an illegal move by the feds. In other words: without punishment, the feds may feel free to do this again. This is now the second (and third) example of the government seizing a domain and censoring it for over a year on a very questionable legal theory — and when the pressure finally gets to be enough, the government turns tail and runs, giving back the domain with no explanation or apology for blatant censorship. That’s unacceptable.

In short, even the US government realized that there was no case to be made against Rojadirecta in 2012. Yet, here we are, in 2013, and rightsholders are using the Rojadirecta case as a reason to place Spain on a piracy watchlist.

The IIPA submission is eye-opining in one regard. Even when rightsholders get every law they want, they’ll demand more. That’s not a random accusation, this submission about Spain proves it.

Of course, we should also point out that the Special 301 report process has suffered major credibility problems as well. In 2012, rightsholders ordered the country of Guatemala to effectively stop being poor and enforce copyright.

So, while fewer and fewer are treating the accusations and demands seriously, it is interesting seeing what sorts of demands rightsholders are coming up with these days. This is because it provides a clearer picture in what rightsholders are wanting when they lobby the governments around the world. Sometimes governments cave to these foreign pressures, sometimes governments seek a compromise between these foreign entities and their citizens and other times the governments refuse to bow to these foreign entities. It will be interesting to see what becomes of demands such as the above this year.

Drew Wilson on Twitter: @icecube85

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