Sun, Nov 05, 2006 - Page 11 News List

Free music downloads are legal, Spanish judge rules

DIGITAL DILEMMAThe court found that it was not a crime in Spain to download files from the Internet, as long as it is done for personal use

THE GUARDIAN , MADRID

A Spanish judge has dealt a blow to the global music industry after ruling that there is nothing illegal about downloading music for free from the Internet as long as it is for personal use.

The decision, the first of its kind in Europe, opens the way for Spain's estimated 16 million Internet users to swap music through online sites.

"This is extremely unusual," said a spokesman for the international recording industry body IFPI, as the judgment was announced on Thursday.

Judge Paz Aldecoa threw out a case against an unnamed 48-year-old man who offered and downloaded digital versions of music on the Internet, according to Spanish press reports. He also sent selections of music recorded on CDs out to people in the post, prosecutors claimed.

The judge ruled that, under Spanish law, a person who downloaded music for personal use could not be punished or branded a criminal.

"That would imply criminalizing socially admitted and widely practiced behavior where the aim is not to gain wealth illegally but to obtain private copies," she said in her judgment.

"If the purpose of the copy is not to gain wealth there is no way that it can be considered illegal," Victor Domingo, head of Spanish Internet user's association Internautas, told the Abc newspaper.

"It would be a lot different if someone downloaded in order to sell on," Domingo said.

But Antonio Guisasola, from Spain's Promusicae recording industry federation, said the judge had got it wrong.

"We have already appealed against the decision," he said. "Peer-to-peer [P2P] sharing is not legal in Spain."

Guisasola, whose federation had backed a prosecution case that demanded a two-year prison sentence and 25,000 euros (US$31,900) in fines and compensation, explained it had tried to prove the man was selling the music he sent out on CDs, rather than just distributing it for free.

Even though it had failed to prove that the man had been selling the music CDs, Guisasola said that his federation was still convinced "private use" was not a legitimate legal excuse for downloading music for free.

"I have been with both the justice minister and the culture minister today and they are both quite clear that peer to peer-is-illegal," he said.

This was even more clearly so in a case where music was being shared by more than one person, he said.

"People should understand that we all have to respect people who create," Spanish Minister of Justice Juan Fernando Lopez Aguilar said on Thursday.

"These are people who have the right to control the use of their literary or artistic creations in all media," he said.

But the judge insisted Spain's intellectual property law protected people against being prosecuted if they could prove private use. Spain is drawing up a new law that is likely to strike out the existing right to "private copies" of material.

The licensing of digital content has become a major issue for the entertainment industry.

The Financial Times on Friday reported that Google has been offering up to US$100 million to media companies including CBS, Viacom, Time Warner and News Corp to license their content to the video Web site YouTube, which it bought last month for US$1.65 billion.

Analysts have warned that YouTube could be targeted by lawsuits for carrying copyrighted material.

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